Clinical Forensic Medicine: A Physician's Guide (Forensic Science and Medicine) - 2nd Edition

Clinical Forensic Medicine F O R SCIENCE- E N A N D S I C -MEDICINE Steven B. Karch, MD, SERIES EDITOR CLI...

Author: Margaret M. Stark

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Clinical Forensic Medicine

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Steven B. Karch, MD, SERIES EDITOR CLINICAL FORENSIC MEDICINE: A PHYSICIAN'S GUIDE, SECOND EDITION edited by Margaret M. Stark, 2005 DRUGS OF ABUSE: BODY FLUID TESTING edited by Raphael C. Wong and Harley Y. Tse, 2005 FORENSIC MEDICINE OF THE LOWER EXTREMITY: HUMAN IDENTIFICATION AND TRAUMA ANALYSIS OF THE THIGH, LEG, AND FOOT, by Jeremy Rich, Dorothy E. Dean, and Robert H. Powers, 2005 FORENSIC AND CLINICAL APPLICATIONS OF SOLID PHASE EXTRACTION, by Michael J. Telepchak, Thomas F. August, and Glynn Chaney, 2004 HANDBOOK OF DRUG INTERACTIONS: A CLINICAL AND FORENSIC GUIDE, edited by Ashraf Mozayani and Lionel P. Raymon, 2004 DIETARY SUPPLEMENTS: TOXICOLOGY AND CLINICAL PHARMACOLOGY, edited by Melanie Johns Cupp and Timothy S. Tracy, 2003 BUPRENOPHINE THERAPY Marquet, 2002

OF

OPIATE ADDICTION, edited by Pascal Kintz and Pierre

BENZODIAZEPINES AND GHB: DETECTION Salamone, 2002

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PHARMACOLOGY, edited by Salvatore J.

ON-SITE DRUG TESTING, edited by Amanda J. Jenkins and Bruce A. Goldberger, 2001 BRAIN IMAGING IN SUBSTANCE ABUSE: RESEARCH, CLINICAL, edited by Marc J. Kaufman, 2001

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FORENSIC APPLICATIONS,

TOXICOLOGY AND CLINICAL PHARMACOLOGY OF HERBAL PRODUCTS, edited by Melanie Johns Cupp, 2000 CRIMINAL POISONING: INVESTIGATIONAL GUIDE FOR LAW ENFORCEMENT, TOXICOLOGISTS, FORENSIC SCIENTISTS, AND ATTORNEYS, by John H. Trestrail, III, 2000 A PHYSICIAN’S GUIDE TO CLINICAL FORENSIC MEDICINE, edited by Margaret M. Stark, 2000

CLINICAL FORENSIC MEDICINE A Physician's Guide SECOND EDITION Edited by

Margaret M. Stark,

LLM, MB, BS, DGM, DMJ, DAB

The Forensic Medicine Unit, St. George's Hospital Medical School, London, UK

Foreword by

Sir John Stevens Commissioner of the Metropolitan Police Service, London, UK

© 2005 Humana Press Inc. 999 Riverview Drive, Suite 208 Totowa, New Jersey 07512 www.humanapress.com All rights reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording, or otherwise without written permission from the Publisher. The content and opinions expressed in this book are the sole work of the authors and editors, who have warranted due diligence in the creation and issuance of their work. The publisher, editors, and authors are not responsible for errors or omissions or for any consequences arising from the information or opinions presented in this book and make no warranty, express or implied, with respect to its contents. This publication is printed on acid-free paper.

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ANSI Z39.48-1984 (American Standards Institute) Permanence of Paper for Printed Library Materials. Production Editor: Amy Thau Cover design by Patricia F. Cleary For additional copies, pricing for bulk purchases, and/or information about other Humana titles, contact Humana at the above address or at any of the following numbers: Tel: 973-256-1699; Fax: 973-256-8341; E-mail: [email protected], or visit our Website at www.humanapress.com Photocopy Authorization Policy: Authorization to photocopy items for internal or personal use, or the internal or personal use of specific clients, is granted by Humana Press Inc., provided that the base fee of US $30.00 per copy, plus US $00.25 per page, is paid directly to the Copyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923. For those organizations that have been granted a photocopy license from the CCC, a separate system of payment has been arranged and is acceptable to Humana Press Inc. The fee code for users of the Transactional Reporting Service is: [1-58829-368-8/05 $30.00]. Printed in the United States of America. 10 9 8 7 6 5 4 3 2 1 eISBN: 1-59259-913-3 Library of Congress Cataloging-in-Publication Data Clinical forensic medicine : a physician's guide / edited by Margaret M.Stark.-- 2nd ed. p. ; cm. -- (Forensic science and medicine) Rev. ed. of: A physician's guide to clinical forensic medicine. c2000. Includes bibliographical references and index. ISBN 1-58829-368-8 (alk. paper) 1. Medical jurisprudence. [DNLM: 1. Forensic Medicine--methods. W 700 C641 2005] I. Stark, Margaret. II. Physician's guide to clinical forensic medicine. III. Series. RA1051.P52 2005 614'.1--dc22 2004024006

Dedication In memory of Smokey and to Amelia and Feline Friends once again!

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Foreword The Metropolitan Police Service (MPS), now in its 175th year, has a long tradition of working with doctors. In fact, the origin of the forensic physician (police surgeon) as we know him or her today, dates from the passing by Parliament of The Metropolitan Act, which received Royal Assent in June of 1829. Since then, there are records of doctors being “appointed” to the police to provide medical care to detainees and examine police officers while on duty. The MPS has been involved in the training of doctors for more than 20 years, and has been at the forefront of setting the highest standards of working practices in the area of clinical forensic medicine. Only through an awareness of the complex issues regarding the medical care of detainees in custody and the management of complainants of assault can justice be achieved. The MPS, therefore, has worked in partnership with the medical profession to ensure that this can be achieved. The field of clinical forensic medicine has developed in recent years into a specialty in its own right. The importance of properly trained doctors working with the police in this area cannot be overemphasized. It is essential for the protection of detainees in police custody and for the benefit of the criminal justice system as a whole. A book that assists doctors in the field is to be applauded. Sir John Stevens

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Preface to the Second Edition The field of clinical forensic medicine has continued to flourish and progress, so it is now timely to publish Clinical Forensic Medicine: A Physician's Guide, Second Edition, in which chapters on the medical aspects of restraint and infectious diseases have been added. Police officers are often extremely concerned about potential exposure to infections, and this area is now comprehensively covered. The results of the use of restraint by police is discussed in more detail, including areas such as injuries that may occur with handcuffs and truncheons (Chapters 7, 8, and 11), as well as the use of crowd-control agents (Chapter 6). The chapter on general injuries (Chapter 4) has been expanded to include the management of bites, head injuries, and self-inflicted wounds. Substance misuse continues to be a significant and increasing part of the workload of a forensic physician, and the assessment of substance misuse problems in custody, with particular emphasis on mental health problems (“dual diagnosis”), has been expanded. Substance misuse is too often a cause of death in custody (Chapter 10). Traffic medicine is another area where concerns are increasing over the apparent alcohol/drugs and driving problem. There has been relevant research conducted in this area, which is outlined Chapter 12. Forensic sampling has undergone enormous technological change, which is reflected in the chapter on sexual assault examination (Chapter 3). The chapter on the history and development of clinical forensic medicine worldwide has been updated (Chapter 1). Chapters on fundamental principles (Chapter 2), nonaccidental injury in children (Chapter 5), and care of detainees (Chapter 8) are all fully revised, as are the appendices (now containing a list of useful websites). Although the subject is constantly evolving, some fundamental principles remain. I was very pleased with the response to the first book, and there appears to be a genuine need for this second edition. I hope the good practice outlined in this book will assist forensic physicians in this “Cinderella speciality.”

Margaret M. Stark ix

Preface to the First Edition “Clinical forensic medicine”—a term now commonly used to refer to that branch of medicine involving an interaction among the law, the judiciary, and the police, and usually concerning living persons—is emerging as a specialty in its own right. There have been enormous developments in the subject in the last decade, with an increasing amount of published research that needs to be brought together in a handbook, such as A Physician’s Guide to Clinical Forensic Medicine. The role of the health care professional in this field must be independent, professional, courteous, and nonjudgemental, as well as well-trained and informed. This is essential for the care of victims and suspects, for the criminal justice system, and for society as a whole. As we enter the 21st century it is important that health care professionals are “forensically aware.” Inadequate or incorrect diagnosis of a wound, for example, may have an effect on the clinical management of an individual, as well as a significant influence on any subsequent criminal investigation and court proceedings. A death in police custody resulting from failure to identify a vulnerable individual is an avoidable tragedy. Although training in clinical forensic medicine at the undergraduate level is variable, once qualified, every doctor will have contact with legal matters to a varying degree. A Physician’s Guide to Clinical Forensic Medicine concentrates on the clinical aspects of forensic medicine, as opposed to the pathological, by endeavoring to look at issues from fundamental principles, including recent research developments where appropriate. This volume is written primarily for physicians and nurses working in the field of clinical forensic medicine—forensic medical examiners, police surgeons, accident and emergency room physicians, pediatricians, gynecologists, and forensic and psychiatric nurses—but such other health care professionals as social workers and the police will also find the contents of use. The history and development of clinical forensic medicine worldwide is outlined, with special focus being accorded the variable standards of care for detainees and victims. Because there are currently no international standards of training or practice, we have discussed fundamental principles of consent, confidentiality, note-keeping, and attendance at court. The primary clinical forensic assessment of complainants and those suspected of sexual assault should only be conducted by those doctors and nurses

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who have acquired specialist knowledge, skills, and attitudes during both theoretical and practical training. All doctors should be able to accurately describe and record injuries, although the correct interpretation requires considerable skill and expertise, especially in the field of nonaccidental injury in children, where a multidisciplinary approach is required. Avoidance of a death in police custody is a priority, as is the assessment of fitness-to-be-detained, which must include information on a detainee’s general medical problems, as well as the identification of high-risk individuals, i.e., mental health and substance misuse problems. Deaths in custody include rapid unexplained death occurring during restraint and/or during excited delirium. The recent introduction of chemical crowd-control agents means that health professionals also need to be aware of the effects of the common agents, as well as the appropriate treatments. Custodial interrogation is an essential part of criminal investigations. However, in recent years there have been a number of well-publicized miscarriages of justice in which the conviction depended on admissions made during interviews that were subsequently shown to be untrue. Recently, a working medical definition of fitness-to-be-interviewed has been developed, and it is now essential that detainees be assessed to determine whether they are at risk to provide unreliable information. The increase in substance abuse means that detainees in police custody are often now seen exhibiting the complications of drug intoxication and withdrawal, medical conditions that need to be managed appropriately in the custodial environment. Furthermore, in the chapter on traffic medicine, not only are medical aspects of fitness-to-drive covered, but also provided is detailed information on the effects of alcohol and drugs on driving, as well as an assessment of impairment to drive. In the appendices of A Physician’s Guide to Clinical Forensic Medicine, the relevant ethical documents relating to police, nurses, and doctors are brought together, along with alcohol assessment questionnaires, the mini-mental state examination, and the role of appropriate adults; the management of head-injured detainees, including advice for the police; the Glasgow Coma Scale, and an example of a head injury warning card; guidance notes on US and UK statutory provisions governing access to health records; an alcohol/drugs impairment assessment form, along with a table outlining the peak effect, half-life, duration of action, and times for detection of common drugs.

Margaret M. Stark

Contents Dedication .............................................................................................. v Foreword by Sir John Stevens ............................................................. vii Preface to Second Edition .................................................................... ix Preface to First Edition ......................................................................... xi Contributors ......................................................................................... xv Value-Added eBook/PDA ................................................................. xvii CHAPTER 1

The History and Development of Clinical Forensic Medicine Worldwide .......................................................................................... 1 Jason Payne-James CHAPTER 2

Fundamental Principles ....................................................................... 37 Roy N. Palmer CHAPTER 3

Sexual Assault Examination ................................................................ 61 Deborah Rogers and Mary Newton CHAPTER 4

Injury Assessment, Documentation, and Interpretation ................... 127 Jason Payne-James, Jack Crane, and Judith A. Hinchliffe CHAPTER 5

Nonaccidental Injury in Children ...................................................... 159 Amanda Thomas CHAPTER 6

Crowd-Control Agents ....................................................................... 179 Kari Blaho-Owens

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CHAPTER 7

Medical Issues Relevant to Restraint ................................................ 195 Nicholas Page CHAPTER 8

Care of Detainees ............................................................................... 205 Guy Norfolk and Margaret M. Stark CHAPTER 9

Infectious Diseases: The Role of the Forensic Physician ................. 235 Felicity Nicholson CHAPTER 10

Substance Misuse ............................................................................... 285 Margaret M. Stark and Guy Norfolk CHAPTER 11

Deaths in Custody .............................................................................. 327 Richard Shepherd CHAPTER 12

Traffic Medicine ................................................................................ 351 Ian F. Wall and Steven B. Karch

Appendices ......................................................................................... 387 Index ................................................................................................... 427

Contributors KARI BLAHO-OWENS, PhD • Research Administration, University of Tennessee Health Science Center, Memphis, TN JACK CRANE, MB BCH, FRCPath, DMJ (Clin & Path), FFPath, RCPI • The Queen’s University of Belfast and Northern Ireland Office, State Pathologist’s Department, Institute of Forensic Medicine, Belfast, Northern Ireland, UK JUDITH A. HINCHLIFFE, BDS, DipFOd • School of Clinical Dentistry, University of Sheffield, Forensic Odontologist, General Dental Practitioner, and Honorary Clinical Lecturer, Sheffield, UK STEVEN B. KARCH, MD • Assistant Medical Examiner, City and County of San Francisco, CA MARY NEWTON, HNC • Forensic Sexual Assault Advisor, Forensic Science Service London Laboratory, London, UK FELICITY NICHOLSON, MB BS, FRCPath • Consultant in Infectious Diseases and Forensic Physician, London, UK GUY NORFOLK, MB ChB, LLM, MRCGP, DMJ • Consultant Forensic Physician and General Practitioner, Stockwood Medical Centre, Bristol, UK NICHOLAS PAGE, MB BS, DCH, DRCOG, DMJ, MRCGP • General Practitioner and Forensic Physician, Ludlow Hill Surgery, Nottingham, UK ROY N. PALMER, LLB, MB BS, LRCP, MRCS, DRCOG • Barrister-at-Law, H. M. Coroner, Greater London (Southern District), Croydon, UK JASON PAYNE-JAMES, LLM, MB, FRCS, DFM, RNutr • Consultant Forensic Physician, London, UK DEBORAH ROGERS, MB BS, DCH, DRCOG, MRCGP, DFFP, MMJ • Honorary Senior Lecturer, The Forensic Medicine Unit, St. George’s Hospital Medical School, London, UK RICHARD SHEPHERD, MB BS, FRCPath, DMJ • Senior Lecturer, The Forensic Medicine Unit, St. George’s Hospital Medical School, London, UK MARGARET M. STARK, LLM, MB BS, DGM, DMJ, DAB • Honorary Senior Lecturer, The Forensic Medicine Unit, St. George’s Hospital Medical School, London, UK

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SIR JOHN STEVENS • Commissioner of the Metropolitan Police Service, London, UK AMANDA THOMAS, MB BS, DCH, MmedSc, MA, FRCPCH • Consultant Community Paediatrician, Department of Community Paediatrics, St. James’ University Hospital, Leeds, UK IAN F. WALL, MB ChB(Hons), FRCGP, DMJ, DOccMed • Consultant Forensic Physician and General Practitioner, Kettering, UK

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History and Development

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Chapter 1

History and Development of Clinical Forensic Medicine Jason Payne-James 1. INTRODUCTION Forensic medicine, forensic pathology, and legal medicine are terms used interchangeably throughout the world. Forensic medicine is now commonly used to describe all aspects of forensic work rather than just forensic pathology, which is the branch of medicine that investigates death. Clinical forensic medicine refers to that branch of medicine that involves an interaction among law, judiciary, and police officials, generally involving living persons. Clinical forensic medicine is a term that has become widely used only in the last two or so decades, although the phrase has been in use at least since 1951 when the Association of Police Surgeons, now known as the Association of Forensic Physicians—a UK-based body—was first established. The practitioners of clinical forensic medicine have been given many different names throughout the years, but the term forensic physician has become more widely accepted. In broad terms, a forensic pathologist generally does not deal with living individuals, and a forensic physician generally does not deal with the deceased. However, worldwide there are doctors who are involved in both the clinical and the pathological aspects of forensic medicine. There are many areas where both clinical and pathological aspects of forensic medicine overlap, and this is reflected in the history and development of the specialty as a whole and its current practice. From: Clinical Forensic Medicine: A Physician’s Guide, 2nd Edition Edited by: M. M. Stark © Humana Press Inc., Totowa, NJ 1

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Payne-James Table 1 Typical Roles of a Forensic Physician a

• • • • • • • • • • • • • • • • •

Determination of fitness to be detained in custody Determination of fitness to be released Determination of fitness to be charged: competent to understand charge Determination of fitness to transfer Determination of fitness to be interviewed by the police or detaining body Advise that an independent person is required to ensure rights for the vulnerable or mentally disordered Assessment of alcohol and drug intoxication and withdrawal Comprehensive examination to assess a person’s ability to drive a motor vehicle, in general medical terms and related to alcohol and drug misuse Undertake intimate body searches for drugs Documentation and interpretation of injuries Take forensic samples Assess and treat personnel injured while on duty (e.g., police personnel), including needle-stick injuries Pronounce life extinct at a scene of death and undertake preliminary advisory role Undertake mental state examinations Examine adult complainants of serious sexual assault and the alleged perpetrators Examine alleged child victims of neglect or physical or sexual abuse Examine victims and assailants in alleged police assaults

Additional roles • Expert opinion in courts and tribunals • Death in custody investigation • Pressure group and independent investigators in ethical and moral issues Victims of torture War crimes Female genital mutilation • Refugee medicine (medical and forensic issues) • Asylum-seeker medicine (medical and forensic issues) • Implement principles of immediate management in biological or chemical incidents For all these examinations, a forensic physician must accurately document findings and, when needed, produce these as written reports for appropriate civil, criminal, or other agencies and courts. The forensic physician must also present the information orally to a court or other tribunal or forum. a Expanded and modified from ref. 22. This table illustrates the role of forensic physicians in the United Kingdom; roles vary according to geographic location.

Police surgeon, forensic medical officer, and forensic medical examiner are examples of other names or titles used to describe those who practice in the clinical forensic medicine specialty, but such names refer more to the appointed role than to the work done. Table 1 illustrates the variety of functions a forensic physician may be asked to undertake. Some clinical forensic medical practitioners may perform only some of these roles, whereas others may play a more


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extended role, depending on geographic location (in terms of country and state), local statute, and judicial systems. Forensic physicians must have a good knowledge of medical jurisprudence, which can be defined as the application of medical science to the law within their own jurisdiction. The extent and range of the role of a forensic physician is variable; many may limit themselves to specific aspects of clinical forensic medicine, for example, sexual assault or child abuse. Currently, the role and scope of the specialty of clinical forensic medicine globally are ill defined, unlike other well-established medical specialties, such as gastroenterology or cardiology. In many cases, doctors who are practicing clinical forensic medicine or medical jurisprudence may only take on these functions as subspecialties within their own general workload. Pediatricians, emergency medicine specialists, primary care physicians, psychiatrists, gynecologists, and genitourinary medicine specialists often have part-time roles as forensic physicians.

2. HISTORICAL REFERENCES The origins of clinical forensic medicine go back many centuries, although Smith rightly commented that “forensic medicine [cannot be thought of] as an entity…until a stage of civilization is reached in which we have…a recognizable legal system…and an integrated body of medical knowledge and opinion” (1). The specific English terms forensic medicine and medical jurisprudence (also referred to as juridical medicine) date back to the early 19th century. In 1840, Thomas Stuart Traill (2), referring to the connection between medicine and legislation, stated that: “It is known in Germany, the country in which it took its rise, by the name of State Medicine, in Italy and France it is termed Legal Medicine; and with us [in the United Kingdom] it is usually denominated Medical Jurisprudence or Forensic Medicine.” However, there are many previous references to the use of medical experts to assist the legal process in many other jurisdictions; these physicians would be involved in criminal or civil cases, as well as public health, which are referred to frequently and somewhat confusingly in the 19th century as medical police. There is much dispute regarding when medical expertise in the determination of legal issues was first used. In 1975, Chinese archeologists discovered numerous bamboo pieces dating from approx 220 BC (Qin dynasty) with rules and regulations for examining injuries inscribed on them. Other historical examples of the link between medicine and the law can be found throughout the world. Amundsen and Ferngren (3) concluded that forensic medicine was used by Athenian courts and other public bodies and that the testimony of physicians in medical matters was given particular credence, although this use of physicians as expert witnesses was “loose and ill-defined” (4), as it was in the

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Roman courts. In the Roman Republic, the Lex Duodecim Tabularum (laws drafted on 12 tablets and accepted as a single statute in 449 BC) had minor references to medicolegal matters, including length of gestation (to determine legitimacy), disposal of the dead, punishments dependent on the degree of injury caused by an assailant, and poisoning (5). Papyri related to Roman Egypt dating from the latter part of the first to the latter part of the fourth century AD contain information about forensic medical examinations or investigations (6). The interaction between medicine and the law in these periods is undoubted, but the specific role of forensic medicine, as interpreted by historical documents, is open to dispute; the degree and extent of forensic medical input acknowledged rely on the historian undertaking the assessment. A specific role for the medical expert as a provider of impartial opinion for the judicial system was identified clearly by the Justinian Laws between 529 and 564 AD. Traill (2) states that: “Medical Jurisprudence as a science cannot date farther back than the 16th century.” He identifies George, Bishop of Bamberg, who proclaimed a penal code in 1507, as the originator of the first codes in which medical evidence was a necessity in certain cases. However, the Constitutio Criminalis Carolina, the code of law published and proclaimed in 1553 in Germany by Emperor Charles V, is considered to have originated legal medicine as a specialty: expert medical testimony became a requirement rather than an option in cases of murder, wounding, poisoning, hanging, drowning, infanticide, and abortion (1). Medicolegal autopsies were well documented in parts of Italy and Germany five centuries before the use of such procedures by English coroners. The use of such expertise was not limited to deaths or to mainland Europe. Cassar (7), for example, describes the earliest recorded Maltese medicolegal report (1542): medical evidence established that the male partner was incapable of sexual intercourse, and this resulted in a marriage annulment. Beck (8) identifies Fortunatus Fidelis as the earliest writer on medical jurisprudence, with his De Relationibus Medicorum being published in Palermo, Italy, in 1602. Subsequently, Paulus Zacchias wrote Quaestiones Medico-Legales, described by Beck as “his great work” between 1621 and 1635. Beck also refers to the Pandects of Valentini published in Germany in 1702, which he describes as “an extensive retrospect of the opinions and decisions of preceding writers on legal medicine.” In France in 1796, Fodere published the first edition in three octavo volumes of his work Les Lois eclairees par les Sciences Physique, ou Traite de Medicine Legale et d’Hygiene Publique.

2.1. Late 18th Century Onward Beginning in the latter part of the 18th century, several books and treatises were published in English concerning forensic medicine and medical


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jurisprudence. What is remarkable is that the issues addressed by many of the authors would not be out of place in a contemporary setting. It seems odd that many of these principles are restated today as though they are new. In 1783, William Hunter (9) published an essay entitled, On the Uncertainty of the Signs of Murder in the Case of Bastard Children; this may be the first true forensic medicine publication from England. The first larger work was published in 1788 by Samuel Farr. John Gordon Smith writes in 1821 in the preface to his own book (10): “The earliest production in this country, professing to treat of Medical Jurisprudence generaliter, was an abstract from a foreign work, comprised in a very small space. It bears the name of ‘Dr. Farr’s Elements,’ and first appeared above thirty years ago.” In fact, it was translated from the 1767 publication Elemental Medicinae Forensis by Fazelius of Geneva. Davis (11) refers to these and to Remarks on Medical Jurisprudence by William Dease of Dublin, as well as the Treatise on Forensic Medicine or Medical Jurisprudence by O. W. Bartley of Bristol. Davis considers the latter two works of poor quality, stating that the: “First original and satisfactory work” was George Male’s Epitome of Juridical or Forensic Medicine, published in 1816 (second edition, 1821). Male was a physician at Birmingham General Hospital and is often considered the father of English medical jurisprudence. Smith refers also to Male’s book but also comments: “To which if I may add a Treatise on Medical Police, by John Roberton, MD.” Texts on forensic medicine began to appear more rapidly and with much broader content. John Gordon Smith (9) stated in The Principles of Forensic Medicine Systematically Arranged and Applied to British Practice (1821) that: “Forensic Medicine—Legal, Judiciary or Juridical Medicine—and Medical Jurisprudence are synonymous terms.” Having referred in the preface to the earlier books, he notes, “It is but justice to mention that the American schools have outstripped us in attention to Forensic Medicine;” he may have been referring to the work of Theodric Romeyn Beck and others. Beck published the first American textbook 2 years later in 1823 and a third edition (London) had been published by 1829 (8). Before this, in 1804, J. A. Stringham, who was trained in Edinburgh and awarded an MD in 1799, was appointed as a Professor in Medical Jurisprudence at the College of Physicians and Surgeons of New York and given a Chair in 1813 (11). John Gordon Smith (9) wrote that “Every medical practitioner being liable to a subpoena, should make it his business to know the relations of physiological and pathological principles to the facts on which he is likely to be interrogated, and likewise the principal judiciary bearings of the case. The former of these are to be found in works on Forensic Medicine; the latter in those on Jurisprudence.” Alfred Taylor (12) in his A Manual of Medical Juris-

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Payne-James Table 2 Chapter Contents of Guy’s 1884 Text, Principles of Forensic Medicine a 1. Medical evidence 2. Personal identity Identity Age Sex 3. Impotence Rape Pregnancy Delivery 4. Foeticide or criminal abortion Infanticide Legitimacy 5. Life assurance Feigned diseases 6. Unsoundness of mind a Adapted

7. Persons found dead Real & apparent death Sudden dath Survivorship 8. Death by drowning Death by hanging Death by strangulation Death by suffocation 9. Wounds 10. Death by fire Spontaneous combustion Death by lightning Death from cold Death from starvation 11. Toxicology Specific poisons

from ref. 16.

prudence defined medical jurisprudence as: “That science, which teaches the application of every branch of medical knowledge to the purpose of the law” There was a clear demand for such books, and Traill’s (2) Outlines of a Course of Lectures on Medical Jurisprudence, published in 1840 when Traill was Regius Professor of Jurisprudence and Medical Police at Edinburgh, was the second edition of a book initially published in 1834 (13). The first Chair of Forensic Medicine had been established in the United Kingdom in Edinburgh in 1803—the appointee being Andrew Duncan, Jr. [although Andrew Duncan Sr. had lectured there on forensic medicine topics since 1789 (14)]. Subsequent nonprofessorial academic forensic medicine posts were established at Guy’s Hospital and Charing Cross Hospital, London. In 1839 and 1875, respectively, academic chairs of medical jurisprudence were created in Glasgow and Aberdeen (15). The relevant areas of interest to forensic medicine and medical jurisprudence were gradually becoming better defined. Table 2 summarizes the chapter contents of Principles of Forensic Medicine by William Guy (16), Professor of Forensic Medicine at King’s College, London, in 1844. Much of this material is relevant to forensic physicians and forensic pathologists working today. Thus, by the end of the 19th century, a framework of forensic medicine that persists today had been established in Europe, the United Kingdom, America, and related jurisdictions.


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3. CONTEMPORARY CLINICAL FORENSIC MEDICINE The following working definition has been suggested: “Clinical forensic medicine includes all medical [healthcare] fields which may relate to legal, judicial, and police systems” (17). Even though medicine and law interact more frequently in cases of living individuals, forensic pathology has long been established as the academic basis for forensic medicine. It is only in the last two decades that research and academic interest in clinical forensic medicine have become an area of more focused research. The recent growth in awareness of abuses of human rights and civil liberties has directed attention to the conditions of detention of prisoners and to the application of justice to both victim and suspect. Examples of injustice and failure to observe basic human rights or rights enshrined in statute in which the input of medical professionals may be considered at least of poor quality and at worst criminally negligent have occurred and continue to occur worldwide. The death of Steve Biko in South Africa, the conviction of Carole Richardson in England, and the deaths of native Australians in prison are widely publicized instances of such problems. Reports from the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment in the early 1990s drew attention to the problem of lack of independence of some police doctors. The conflicting needs and duties of those involved in the judicial system are clear, and it is sometimes believed that recognition of such conflicts is comparatively recent, which would be naïve and wrong. In England and Wales, the Human Rights Act 1998, whose purpose is to make it unlawful for any public authority to act in a manner incompatible with a right defined by the European Convention of Human Rights, reinforces the need for doctors to be aware of those human rights issues that touch on prisoners and that doctors can influence. It is worth noting that this law was enacted almost 50 years after publication of the European Convention of Human Rights and Fundamental Freedoms. The future role of the forensic physician within bodies, such as the recently established International Criminal Court, is likely to expand. The forensic physician has several roles that may interplay when assessing a prisoner or someone detained by the state or other statutory body. Three medical care facets that may conflict have been identified: first, the role of medicolegal expert for a law enforcement agency; second, the role of a treating doctor; and third, the examination and treatment of detainees who allege that they have been mistreated by the police during their arrest, interrogation, or the various stages of police custody (18). This conflict is well-recognized and not new for forensic physicians. Grant (19), a police surgeon

8

Payne-James

appointed to the Metropolitan Police in the East End of London just more than a century ago, records the following incident: “One night I was called to Shadwell [police] station to see a man charged with being drunk and disorderly, who had a number of wounds on the top of his head…I dressed them…and when I finished he whispered ‘Doctor, you might come with me to the cell door’…I went with him. We were just passing the door of an empty cell, when a police constable with a mop slipped out and struck the man a blow over the head…Boiling over with indignation I hurried to the Inspector’s Office [and] told him what had occurred.” Dr. Grant records that the offender was dealt with immediately. Dr. Grant rightly recognized that he had moral, ethical, and medical duties to his patient, the prisoner. Dr. Grant was one of the earliest “police surgeons” in England, the first Superintending Surgeon having been appointed to the Metropolitan Police Force on April 30, 1830. The Metropolitan Police Surgeons Association was formed in 1888 with 156 members. In 1951, the association was reconstituted as a national body under the leadership of Ralph Summers, so that improvements in the education and training for clinical forensic medicine could be made. The Association of Forensic Physicians, formerly the Association of Police Surgeons, remains the leading professional body of forensic physicians worldwide, with more 1000 members.

4. GLOBAL CLINICAL FORENSIC MEDICINE Table 3 is a summary of responses to a questionnaire on various aspects of clinical forensic medicine sent in early 2003 to specialists in different countries. The selection of countries was intended to be broad and nonselective. It shows how clinical forensic medicine operates in a variety of countries and jurisdictions and also addresses key questions regarding how important aspects of such work, including forensic assessment of victims and investigations of police complaints and deaths in custody, are undertaken. The questionnaire responses were all from individuals who were familiar with the forensic medical issues within their own country or state, and the responses reflect practices of that time. The sample is small, but numerous key points emerge, which are compared to the responses from an earlier similar study in 1997 (20). In the previous edition of this book, the following comments were made about clinical forensic medicine, the italicized comments represent apparent changes since that last survey. • No clear repeatable patterns of clinical forensic medicine practice may be seen on an international basis—but there appears to be an increase in recognition of the need to have appropriate personnel to undertake the roles required. • Several countries have informal/ad hoc arrangements to deal with medical and forensic care of detainees and victims—this still remains the case—often with


•

•

•

• •

9

large centers having physicians specially trained or appointed while rural or outlying areas are reliant on nonspecialists. The emphasis in several countries appears to be on the alleged victim rather than the alleged suspect—this remains the case, although there are suggestions that this approach is being modified. The standard of medical care of detainees in police custody is variable—there appears to be more recognition of the human rights aspects of care of those in police custody. There are no international standards of practice or training—international standards are still lacking—but more countries appear to be developing national standards. There are apparent gaps in the investigation of police complaints in some countries—this remains the case. Death-in-custody statistics are not always in the public domain—this remains the case—and the investigation of deaths in police custody may still not be independently undertaken.

There appears to be wider recognition of the interrelationship of the roles of forensic physician and forensic pathology, and, indeed, in many jurisdictions, both clinical and pathological aspects of forensic medicine are undertaken by the same individual. The use of general practitioners (primary care physicians) with a special interest in clinical forensic medicine is common; England, Wales, Northern Ireland, Scotland, Australasia, and the Netherlands all remain heavily dependent on such professionals. Academic appointments are being created, but these are often honorary, and until governments and states recognize the importance of the work by fully funding full-time academic posts and support these with funds for research, then the growth of the discipline will be slow. In the United Kingdom and Europe much effort has gone into trying to establish a monospecialty of legal medicine, but the process has many obstacles, laborious, and, as yet, unsuccessful. The Diplomas of Medical Jurisprudence and the Diploma of Forensic Medicine (Society of Apothecaries, London, England) are internationally recognized qualifications with centers being developed worldwide to teach and examine them. The Mastership of Medical Jurisprudence represents the highest qualification in the subject in the United Kingdom. Further diploma and degree courses are being established and developed in the United Kingdom but have not yet had first graduates. Monash University in Victoria, Australia, introduced a course leading to a Graduate Diploma in Forensic Medicine, and the Department of Forensic Medicine has also pioneered a distance-learning Internet-based continuing-education program that previously has been serialized in the international peer-reviewed Journal of Clinical Forensic Medicine.

10

Payne-James

Many forensic physicians undertake higher training in law or medical ethics in addition to their basic medical qualifications. In addition to medical professionals, other healthcare professionals may have a direct involvement in matters of a clinical forensic medical nature, particularly when the number of medical professionals with a specific interest is limited. Undoubtedly, the multiprofessional approach can, as in all areas of medicine, have some benefits.

5. CONCLUSIONS As with the previous edition of the book, key areas still need to be addressed in clinical forensic medicine: 1. It needs to be recognized globally as a distinct subspecialty with its own fulltime career posts, with an understanding that it will be appropriate for those undertaking the work part-time to receive appropriate training and postgraduate education. 2. Forensic physicians and other forensic healthcare professionals must ensure that the term clinical forensic medicine is recognized as synonymous with knowledge, fairness, independence, impartiality, and the upholding of basic human rights. 3. Forensic physicians and others practicing clinical forensic medicine must be of an acceptable and measurable standard (20).

Some of these issues have been partly addressed in some countries and states, and this may be because the overlap between the pathological and clinical aspects of forensic medicine has grown. Many forensic pathologists undertake work involved in the clinical aspects of medicine, and, increasingly, forensic physicians become involved in death investigation (21). Forensic work is now truly multiprofessional, and an awareness of what other specialties can contribute is an essential part of basic forensic education, work, and continuing professional development. Those involved in the academic aspects of forensic medicine and related specialties will be aware of the relative lack of funding for research. This lack of funding research is often made worse by lack of trained or qualified personnel to undertake day-to-day service work. This contrasts more mainstream specialties (e.g., cardiology and gastroenterology), where the pharmaceutical industry underpins and supports research and development. However, clinical forensic medicine continues to develop to support and enhance judicial systems in the proper, safe, and impartial dispensation of justice. A worldwide upsurge in the need for and appropriate implementation of human rights policies is one of the drivers for this development, and it is to be hoped that responsible governments and other world bodies will continue to raise the profile of, invest in, and recognize the absolute necessity for independent, impartial skilled practitioners of clinical forensic medicine.

11

Sweden Switzerland

South Africa Spain

The Netherlands Nigeria Scotland Serbia

Israel Malaysia

India

Germany Hong Kong

Response Australia England and Wales

Question A

Yes (within the state). Two-tiered system addressing general health issues and forensic medical services. Yes. Police surgeons (forensic medical examiners/forensic physicians) are contracted (but not generally employed) by both police and courts to undertake this. The Police & Criminal Evidence Act (PACE) 1984 made particular provision for this and for prisoners to request to see a doctor. Police surgeons do not necessarily have specific forensic training or qualifications. Yes, only after a court order has been granted. Yes. The formal and generic mechanism is for the individual to be taken to an emergency department of a nearby hospital. Rarely he or she may be sent for a specific purpose to a specialist forensic doctor. Yes. Under a Section of the Criminal Procedure Code, a police officer can immediately bring an arrested person to a doctor for examination. If the arrested person is a female, only a female registered medical practitioner can examine her. The accused/detained person can contact the doctor and have himself or herself examined. Yes No organized forensic clinical services available. Subjecting the detainees for examination is at the discretion of the agencies. If the need arises, usually doctors who have no training in clinical forensic medicine (CFM) undertake such examinations. In larger institutions, senior doctors and, at times, forensic pathologists may examine them. Yes Yes (for medical reasons) dependent on the availability of the physician. Yes. Police retain services of doctors not all necessarily qualified in CFM. Yes, via the public health system. Generally for treatment purposes. Also, if considered necessary for evidence collection (by the investigator appointed under the Criminal Procedure Act (CPA) the police will refer to prosecutor in charge seeking for his or her permission to call a forensic doctor. Yes, but not in all parts of the country. Yes, any individual detained in police custody has the right to be examined by a doctor. In certain cases, one has the right to have a forensic assessment (by the Forensic Surgeon Corps of the Ministry of Justice). Yes Yes

Is there a formal system in your country (or state) by which the police and judicial system can get immediate access to medical and/or forensic assessment of individuals detained in police custody (prisoners)?

Table 3 Clinical Forensic Medicine: Its Practice Around the World Questions and Responses January 2003

History and Development 11

12

Not always; psychiatrist in some cases.

When a person is under arrest (without having being put under regulation), he asks to be examined by a doctor, he is usually transferred to the Spanish Health Public System doctors. The forensic surgeon takes part exceptionally.

So-called “police doctors,” who usually are general practitioners.

The “prison doctor”: either a doctor of internal medicine of university hospital or in rural regions the district physician (acute cases). A forensic doctor of the Institute of Legal Medicine of the University of Zurich (not urgent cases, “chronic cases”).

Sweden

Switzerland

If there is an obvious health problem or if they have certain diseases that need medical attention, police will take them to a public healthcare facility or, in the case of emergency, call an ambulance.

Serbia

South Africa

Police surgeons—these doctors are not employees. Nursing schemes have been mooted but not yet been implemented.

Spain

Any doctor attached to prison services, the police or doctors in the local hospitals, depending on who is available.

Generally speaking: Public health officers, who are qualified in clinical forensic medicine.

Nigeria

Generally not unless they become ill. Any government doctor in the nearest hospital may undertake such an examination.

Malaysia

The Netherlands

Scotland

A government doctor.

Police surgeons.

Currently, the duty police officer looks and asks if medical attention is required. Most duty officers are quite liberal in referring the individuals to the emergency department.

Hong Kong

India

Normally a police surgeon; if not, then any qualified doctor.

Germany

Israel

Police surgeons. Recent changes to statutory Codes of Practice suggest that an appropriate health care professional may be called.

Nurses or medical practitioners who are employed or retained by police.

Who examines or assesses individuals who are detained in police custody to determine whether they are medically fit to stay in police custody?

England and Wales

Response Australia

Question B

12 Payne-James

13

Not routinely.

Yes

No

Only when a need is established or the prisoner requests medical assistance. Profound intoxication or suspicion of head injury would be an indication for examination.

Intoxicated detainees may be requested to provide a blood or other appropriate samples for analysis. The request can be refused. Samples are arranged outside police premises, usually in the public health institutions.

Yes, but not common practice.

Yes, he or she is often examined and even blood samples are extracted (with his or her previous consent) if the prisoner is involved in some aggression, homicide or car driving, for example.

Yes. In most custody suites, a nurse is employed nurse who will call a doctor.

Yes, see previous answer to question B.

Malaysia

The Netherlands

Nigeria

Scotland

Serbia

South Africa

Spain

Sweden

Switzerland

Yes

Yes

India

Israel

Yes

Yes, they will most certainly be sent to the emergency department. Registered addicts will occasionally be taken to a methadone clinic if they are suffering from withdrawal.

Germany

Yes, if there are associated health concerns, or if there is a specific need to determine fitness to interview when either intoxication or withdrawal may render an interview invalid. Specific guidelines are published on care of substance misuse detainees in police custody.

Yes, but it will largely depend on any health concerns (e.g., abusive, intoxicated person—unlikely to access medical attention, but impaired conscious state—always access medical attention).

If a prisoner is suspected of being under the influence of drugs or alcohol in police custody, is it usual for him or her to be examined by a doctor (or other health care professional) to determine whether they are fit to remain in custody?

Hong Kong

England and Wales

Response Australia

Question C


14

Not known.

Yes

Sweden

Switzerland

No

Yes

Local procedures for each police force based on central guidance, but there is no statute.

Scotland

Serbia

Yes, there are specific rules in Constitution and in the Penal Code.

Not aware of any.

Nigeria

South Africa

Yes

Spain

Yes. Inspector General’s Standing Order.

Malaysia

The Netherlands

The Protection of Human Rights Act 1993 stipulates detailed provisions regarding this.

Yes

India

There are generic guidelines for all in custody; none specific to the police.

Hong Kong

Israel

Yes

Yes

England and Wales

Germany

Yes

Does your country/state have specific codes/laws/statutes or regulations that make provision for the welfare of individuals in police custody?

Response Australia

Question D

14 Payne-James

15

Generally public health officers, qualified in clinical forensic medicine.

Primary care physicians and medical officers in local hospitals.

Usually police surgeon, some may be admitted to hospital and be examined by hospital staff.

There is no standard procedure for the examination of alleged victims of sexual assault. There are no protocols for the examination of victims, or for collection of forensic samples.

The Netherlands

Nigeria

Scotland

Serbia

Physicians of Institute of Legal Medicine of University of Zurich (District Physician); Physicians of University Department of Gynecology, University Hospital Zurich.

In major hospitals, there may be fixed protocols. Some forensic physicians, primary care physicians, emergency medicine physicians, and gynecologists undertake such examinations. In smaller hospitals, nonspecialist physicians do the examinations. In some cases, forensic pathologists.

Malaysia

Switzerland

Forensic pathologists.

Israel

The police are free to engage any doctor to do this. In cases of assault on adults, the examination is undertaken by specialists in FM in a small fraction of the cases. A specialist in pediatric medicine or surgery always examines children, often, but not always, with a specialist in forensic medicine.

Different centers have different protocols (e.g., in this institution, gynecologists—mainly females).

India

Sweden

Forensic pathologists/doctors mainly. Accident and emergency doctors occasionally and family planning doctors. The latter when the victims do not wish to report the incident to police.

Hong Kong

Medical practitioner.

Either a gynecologist or a medicolegal doctor.

A forensic surgeon (médico forense) and a gynecologist (if the victim is female) or a proctologist (if the victim is male).

Police surgeons or sexual offense examiners or doctors employed within specialist sexual offenses units.

England and Wales

Germany

South Africa

Forensic medical officers.

Response Australia

Spain

Who undertakes the forensic medical examination and assessment of alleged victims of sexual assault?

Question E


Forensic pathologists/doctors mainly.

Different centers have different protocols (in this institution, forensic medicine specialists). A bizarre situation, where the victim goes to the gynecology department, whereas the accused in the same case comes to us.

Forensic pathologists.

Hong Kong

India

Israel

16

Similar to the procedures of adult victims.

Physicians of Institute of Legal Medicine of University of Zurich (District Physician).

Switzerland


South Africa

A forensic surgeon.

In practical terms, rarely done although the Criminal Procedure Act allows examination of alleged perpetrators of any crime (including sexual assault) for forensic purposes even without their consent if the examination itself is not considered harmful to them.

Serbia

Spain

Police surgeon (although experienced police surgeons are not readily available in some sparsely populated areas, and the inexperienced are often reluctant to embark on such an examination).

Sweden

Same as for alleged victims of sexual assault. See previous answer to question E.

Nigeria

Scotland


Medicolegal doctor.

Generally speaking, public health officers who are qualified in clinical forensic medicine.

Police surgeons.

England and Wales

Germany

Malaysia

Forensic medical officers.

Response Australia

The Netherlands

Who undertakes the forensic medical examination and assessment of alleged perpetrators of sexual assault?

Question F

16 Payne-James

17

Yes

Yes

South Africa

Switzerland

There is no statutory provision that regulates free choice of either the victim or the perpetrator to be examined by a doctor of preferred (same) gender.

No

Not always, but every effort is made to comply with an examinee’s wishes.

Scotland

Serbia

No. It depends on the doctor on duty.

No

Spain

Usually but not always.

The Netherlands

Nigeria

Sweden

Not always.

It may be accommodated if possible.

Israel

Yes, if requested, a doctor of the same gender would be arranged. This would generally apply only to the victim (female gynecologists examine the victim anyway). The wishes of the accused are not always observed. It is highly unusual for a female to examine a male accused.

India

Malaysia

Yes

No, there is currently only one full-time female forensic doctor able to do this.

Germany

Hong Kong

Generally, yes.

Generally, yes, but not always possible.

England and Wales

In cases of sexual assault is it always possible for victim, perpetrator, or both to be examined by a doctor of the same gender if that is requested?

Response Australia

Question G


18

Same as for adults. See previous answer to question E.

Younger than 16 yr: female gynecologist at University Children Hospital. Older than 16 yr: examined as adult.

Sweden

Switzerland


A forensic surgeon and a pediatrician.

South Africa

Wherever possible, by pediatricians or gynecologists. Smaller hospitals by nonspecialist physicians.

Generally speaking, public health officers qualified in clinical forensic medicine.

Malaysia

The Netherlands

Spain

Forensic pathologists and pediatricians.

Israel

Physicians with forensic training are rarely involved in initial examination and assessment. Forensic physicians tend to get involved at a later stage of investigation.

Female children—gynecologist, preferably female (which is generally the case anyway). Male children—forensic personnel of either sex.

Serbia

Forensic pathologists/physicians, pediatricians, obstetricians, and gynecologists, sometimes jointly.

Hong Kong

India

In the larger centers, joint pediatric/police surgeon examinations are common. For other centers, it varies.

Either pediatrician gynecologist or medicolegal specialist.


Police surgeons and/or pediatricians. Ideally joint examinations (guidelines for the assessment have been issued).

England and Wales

Germany

Nigeria

Forensic medical officers or pediatricians.

Response Australia

Scotland

Who undertakes the forensic medical examination and assessment of alleged child victims of sexual assault?

Question H

18 Payne-James

Pediatricians in smaller hospitals by nonspecialist physicians.

19

Same as for an adult. See previous answer to question E.

Younger than 16 yr: doctors at University Children Hospital (Trauma-X group). Older than 16 yr: doctors of Institute of Legal Medicine of University of Zurich (District Physician).

Switzerland


South Africa

Forensic surgeon and a forensic pediatrician.

Formerly, few forensic pathologists were involved. Situation is somewhat improved, but still poor cooperation between clinicians and forensic doctors.

Serbia

Spain

Mostly pediatricians but some evidence is based on findings of family physicians.

Sweden


Nigeria

Scotland


Malaysia

The Netherlands

Forensic medicine departments.

Forensic pathologists and pediatricians.

India

Pediatricians. Sometimes forensic pathologists/physicians. Sometimes jointly.

Israel

Pediatrician or medicolegal specialist.

England and Wales

Germany

Forensic medical officers or pediatricians.

Police surgeons and/or pediatricians.

Response Australia

Hong Kong

Who undertakes the forensic medical examination and assessment of alleged child victims of physical assault?

Question I


20

Yes

Variable picture. Screening by police surgeons. On-call psychiatrist or mental health team in some areas. Some courts have regular pretrial psychiatric attendance.

Not when in police custody (within 48 h after arrest). If suspect is detained on the order of the investigative judge, then may be examined by psychiatrist and/or psychologist when need.

Yes

Yes. If mental health problems are apparent, case is remitted to a judge and detainee is examined by a forensic surgeon and a psychiatrist.

It’s part of the “police doctors” duties, but many custodies do have access to psychiatric consultants.

Those who have known disorders are followed by a specialized forensic psychiatric/psychological service; others are reported by the guards.

Nigeria

Serbia

South Africa

Spain

Sweden

Switzerland

Yes

Scotland

Yes

Yes

Israel

Malaysia

Yes, in theory. This may not be strictly observed until and unless there is a court order that may need to be obtained by relatives.

India

The Netherlands

Yes

Yes. They are likely to be referred to psychiatrists or, in the case of learning disability, to social workers and/or clinical psychologists.

Germany

Yes

Hong Kong

Yes

England and Wales

Is there a system in your country/state whereby individuals detained in police custody who appear to have (or do have) psychiatric disorder or mental health problems or learning disability may be assessed?

Response Australia

Question J

20 Payne-James

21

Yes

Victims of sexual assault are examined in gynecology or pediatric units of large hospitals.

South Africa

Spain

No

No

Yes, but only in some cities.

Specialized units widely available, often on police premises. Children usually in hospital.

Scotland

Serbia

Sweden

No

Switzerland

Sometimes, but not always.

The Netherlands

Nigeria

No

India

Yes

There are purpose-built video interview and medical examination suites. These tend to be used only when there is a strong likelihood of prosecution. Often done in pediatric wards.

Hong Kong

Some major hospitals have “one-stop centers” with protocols for managements, both short- and long-term.

No

Israel

Yes, but not full geographical coverage; tends to be in urban centers.

England and Wales

Germany

Malaysia

Yes

In your country/state are there specialized units or locations where victims of sexual assault are examined or assessed?

Response Australia

Question K


22

Physicians working for public healthcare system.


A forensic surgeon as member of the Ministry of Justice (completely independent of the police).

South Africa

Spain

Advised that a specialist in forensic medicine should do it.

Police surgeon (unless urgent transfer to hospital).

Scotland

Serbia

Physicians of Institute of Legal Medicine, University of Zurich (District Physician).

Physician attached to the police service, could be a uniformed officer.

Sweden


The Netherlands

Nigeria

Switzerland

Forensic pathologist.

No experience with this. If needed, probably forensic pathologist.

Any available physician.

The majority are examined by emergency medicine physicians. Some are examined by forensic pathologists/physicians.

Hong Kong

India

Israel

An independent medical doctor.

Malaysia

Police surgeons.

England and Wales

Forensic medical officers (report and documentation of injuries). Police medical officers (for any occupational health and safety issues).

In cases of alleged assault by police, who examines the police personnel?

Germany

Response Australia

Question L

22 Payne-James

23


A forensic surgeon and a gynecologist or a urologist.

See answer to question L.

Physicians of Institute of Legal Medicine, University of Zurich (District Physician).

South Africa

Spain

Sweden

Switzerland

Police surgeon (unless urgent transfer to hospital).


Scotland

Medical officer in the local hospital; (if he is lucky to have the opportunity and guts to complain).

Serbia


The Netherlands


Nigeria

The majority are examined by emergency medicine specialists. Some are examined by forensic pathologists/physicians.

Hong Kong

India


An independent medical doctor.


Police surgeons.

England and Wales

Germany

Israel

Forensic medical officers (report and documentation of injuries).

Response Australia

Malaysia

In cases of alleged assault by police, who examines the complainant?

Question M


24

Yes

Switzerland

IPCC, Independent Police Complaints Commission.

Yes

Independent Complaint Directorate.

South Africa

The correspondent court of first instance (the one on duty at the moment when the facts are reported).

There is a Commission for Complaints within the police services as a first tier. Within the Ministry of Interior there is a second tier. Victims of police assault can also report directly to the court of law in accordance with the penal code, and Criminal Procedure Act.

Serbia

Spain

The procurator fiscal (public prosecutor, legally qualified civil servants). Complaints must be referred by police where any criminality is alleged.

Sweden

A tribunal would be set up if the issue is considered to be of significant national interest.

Nigeria

Scotland

Yes

Yes

Israel

The Netherlands

Yes. Via the police commissioner or to the magistrate. Probably rarely used.

India

There are human rights groups. Police also conduct investigations against their own staff.

Yes. All complaints are handled by the Complaints Against Police Office (part of the police), but all cases are then reviewed by a statutory board the IPCC.

Hong Kong

Malaysia

State prosecutor.

Germany

Yes

Yes. The Police Complaints Authority, which was replaced by the Independent Police Complaints Commission (IPCC) in 2004.

Response Australia

England and Wales

In your country/state, is there a person, body, or organization that investigates complaints against the police?

Question N

24 Payne-James

(a) Yes (directly under the national prosecutor’s office). (a) No (a) No. Complaints are investigated by police unless criminality is suspected, when immediate report to regional PF is mandatory. (a) No. As part of the police and Ministry of Interior, the Commission, on both tiers, is not independent from the police. (a) Yes (seemingly). (a) Yes. The police are subordinate to the Court of First Instance. (a) No. It’s a special unit within the police. (a) Yes

The Netherlands Nigeria Scotland

25

IPCC, Independent Police Complaints Commission; PF, procurator fiscal.

Sweden Switzerland

South Africa Spain

Serbia

Israel Malaysia

(a) Yes (a) Complaints Against Police Office—No. police establishment. (a) Police commissioner is from the police stream itself. Magistrates are completely independent of the police. (a) Yes (a) No

(a) Two bodies: police—Internal Investigations and government body—Ombudsman’s Office. (a) The Police Complaints Authority is independent of the police and was replaced by the IPCC.

25

(b) International organizations. (b) The judge, the judicial secretary, the district attorney, and the forensic surgeon. (b) State funded. (b) The state of Zurich.

(b) Government

(b) Ministry of Justice. (b) There are nongovernmental organizations who back the victims and provide support. Police conducts their own investigations. (b) Ministry of Justice. (b) Government funded. (b) Cases taken by the PF are centrally funded.

(b) Government.

(b) Judicial system. (b) IPCC—Yes. Funded by taxpayer.

(b) The government.

(b) Government funded.

If your country has a person, body, or organization that investigates complaints against the police, (a) is it completely independent of the police? and (b) who funds it?

Germany Hong Kong India

England and Wales

Response Australia

Question O


26

Yes

Yes, the district attorney and the Institute of Legal Medicine.

Switzerland

Both the Independent Complaint Directorate and forensic pathologist/medical practitioner.

South Africa

Yes. The Court of First Instance (of criminal investigation).

In the case of death in police custody, but also during the police action or allegedly as a result of police action, or while person is in penitentiary, district court that has territorial jurisdiction should order full postmortem, as well as other investigations.

Serbia

Spain

All investigations are under the supervision of procurator fiscal; there is always a public “fatal accident inquiry” before a judge.

Scotland

Sweden

Yes

A uniformed police pathologist, rarely a hospital pathologist, and, in some cases, a medical officer.

The Netherlands

Nigeria

Yes

All deaths in custody are subjected to inquest by the magistrate according to Malaysian criminal procedure code.

Israel

Yes, the magistrate does it. Police cannot investigate such deaths.

India

Malaysia

State prosecutor and forensic legal medicine.

Yes, the coroner with a mandatory inquest held in public and with a jury. However, the investigations are conducted by the police.

Germany

Hong Kong

Yes

Yes, the Police Complaints Authority.

England and Wales

In your country/state, is there person, body, or organization that investigates deaths of individuals while in police custody?

Response Australia

Question P

26 Payne-James

(a) Yes

(a) Magistrate is independent.

Israel

Malaysia

27

(a) Yes

(a) Yes, the Department of Justice.

Sweden

Switzerland

(a) Yes. Doctors who assist individuals detained and prisoners are specialists totally independent of police. (b) It is funded by health system doctors (Health Public National System), forensic surgeons (Ministry of Justice), and prison doctors (Ministry of Justice).

Spain

(b) State and government.

(b) The state of Zurich.

(b) The Department of Justice.

(b) International organization.

(a) Yes, it is a court of law.

(a) Yes

Serbia

All investigations are under supervision of PF; there is always a public fatal accident inquiry before a judge.

South Africa

(a) It depends on who does the case.

Nigeria

(b) Government funded.

(b) There is no full-time coroner; magistrate acts as the coroner in normal deaths, except custodial deaths, where the magistrate acts directly. Most of the deaths are investigated by the police; the coroner does not play a visible role. Inquest system needs improvement.

(b) The judiciary.

Scotland

(a) Yes

(b) Ministry of Justice.

(a) Yes

The Netherlands

(b) Government pays the salary.

(a) Yes

Hong Kong

India

(b) Government. (b) State.

(a) Yes

(a) Yes

England and Wales

(a) Three bodies police—homicide squad and internal investigations, coroner’s office, and Ombudsman’s Office. (b) Government.

If the answer to the previous question is yes: (a) is that person, body, or organization independent of the police, and (b) who funds that organization?

Germany

Response Australia

Question Q


28

No

No

No

Spain

Sweden

Switzerland

Not aware of any statistics.

Not aware of any statistics.

Serbia

No

South Africa

No

Nigeria

Yes

Scotland

Police Headquarters maintains all data.

Malaysia

The Netherlands

Yes, a publication called Crime Statistics, published by the Natonal Crime Records Bureau.

No

India

Israel

Yes

Yes, in the Coroners Annual Report.

Yes

England and Wales

Germany

Yes

Response Australia

Hong Kong

In your country/state are statistics published about deaths that have occurred in police custody?

Question R

28 Payne-James

29

Not applicable.

Not applicable.

In the state of Zurich, all cases are investigated by the Institute of Legal Medicine to establish the cause and manner of death.

Spain

Sweden

Switzerland

Not applicable.

Not applicable.

Serbia

Not applicable.

South Africa

Not applicable.

Nigeria

The prosecutor receives complete autopsy results.

Scotland

Not known whether it is regularly published, but data available.

Malaysia

The Netherlands

Yearly publication. The figures may be inaccurate or incomplete.

No.

The number of occurrences, the custodian department, and the verdicts of the inquests are summarized but no details of death itself are presented.

Hong Kong

India

Granzow, Püschel. Arch. Kriminol. 1998 J201:1–10. Includes an analysis of cause of death.

Israel

Annual report of the Police Complaints Authority with breakdown of causes and circumstances of death.

England and Wales

Coroners report includes all cases. Australian Institute of Criminology publishes it annually. Complete analysis in all cases.

If the answer to the previous question is yes, where, when, and how often are those statistics published and do they include an analysis of cause of death (e.g., self-harm, drugs, or other violence)?

Germany

Response Australia

Question S


30

(b) (b) (b) (b)

Yes Yes, as part of the discipline of pathology. Yes Yes. There is laid-out training for FP under the Hong Kong College of Pathologists, which includes CFM aspects. There is also statutory specialty registration but again, only in FP. (a) There is just one superspecialty called FM, which caters to both (a) CFM, as well as (b) FP. (a) Yes (b) Yes (a) No (b) No (a) No (b) No (a) Yes (b) Yes. Recognition (by the Nigerian Medical Council and Postgraduate Medical College) is strictly as a subspecialty of pathology. (a) As for England and Wales—only that the craft is (b) Yes, as part of pathology. recognized by British Medical Association. (a) Yes (b) Yes. Specialization is designated as FM, covering both issues. There are no separate specializations. The model was imported from Germany and France at the beginning of the last century when the first medical faculties were founded in the country. (a) Yes—using a diploma or master’s degree. (b) Yes, recognized registered specialty. (a) Yes and no. Each forensic surgeon has undertaken a competitive examination in the Supreme Court–Ministry of Justice. Some also are specialists in legal and FM granted by the Ministry of Education. The Ministry of Justice has recognized both for forensic surgeons working in Institutes of Legal Medicine. (a) Yes (b) Yes (a) Yes (b) Yes. The specialist title of Legal Medicine covers both subspecialties.

(a) No (a) No (a) No, only in some states in Germany. (a) Yes and no.

Does your country/state have a recognized (recognized by your medical professional body) specialty or subspecialty of medicine for those working in (a) clinical forensic medicine (CFM) or (b) forensic pathology (FP)?

FM, forensic medicine.

Sweden Switzerland

South Africa Spain

Serbia

Scotland

India Israel Malaysia The Netherlands Nigeria

Response Australia England and Wales Germany Hong Kong

Question T

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Payne-James

31

(a) German Society of Legal Medicine.

(a) N/A

(a) Indian Academy of Forensic Medicine.

(a) Israel Association of Pathologists.

(a) Hospital forensic pathologists come under the Ministry of Health. Others are in the University Departments of Pathology. Forensic Unit comes under pathology. Clinical forensic medicine is mostly a neglected subject.

(a) Not available.

(a) There is no professional body that represents these few specialists.

Germany

Hong Kong

India

Israel

Malaysia

The Netherlands

Nigeria

IAFM, Indian Academy of Forensic Medicine.

(a) Association of Forensic Physicians (formerly the Association of Police Surgeons (approx 1000).

(a) Australian College of Pathologists.

31 (Continued on next page)

(b) There are two diploma of medical jurisprudence clinical graduates. There is no forensic pathologist (including the author) in Nigeria.

(b) Not available.

(b) Not available.

(b) 12

(b) Approximately 500 people are represented. For more information on IAFM, please visit its website at (http://www.fortunecity.com/campus/electrical/314/ iafm.html).

Pathology.

(b) Hong Kong College of Pathologists, Forensic

(b) Approximately 400.

(b) British Association in Forensic Medicine (approx 300; only 40 or so full-time).


Can you supply the details (a) of the main organization that represents the interests of such practitioners and (b) the number of practitioners represented?

England and Wales

Response Australia

Question U


32

(a) APS and BMA for clinical forensic medicine in UK. (b) APS, 1000; BAFM, 100. Pathologists by BAFM and BMA—BMA has Forensic Medicine Committee. (a) Yugoslav Association of FM. (b) Approximately 40–50 members. (a) Department of Health in collaboration with interna(b) About 80 practitioners. tional organizations (a) Forensic surgeons form groups in some professional (b) About 300 forensic surgeons are represented by associations nationwide, such as the Asociación those associations. The number of licensed Nacional de Médicos Forenses, Asociación Andaluza medicolegal experts in Spain is currently 450, and de Médicos Forenses, Asociación Estatal de Médicos acting medicolegal experts about 150. Forenses, Asociación Gallega de Médicos Forenses., etc. (a) The National Forensic Board, under the Department (b) There are approx 25 specialists in FM in Sweden of Justice, is responsible for all examinations in the today. fields of forensic pathology (death investigations), forensic psychiatry, FM, and forensic genetics. All specialists who are active in these fields are employed by this organization. Competition in these fields is free but does not, with the exception for investigations of living victims and perpetrators, occur. (a) Swiss Society of Legal Medicine, (b) 40. Website: (www.legalmed.ch).

Can you supply the details (a) of the main organization that represents the interests of such practitioners and (b) the number of practitioners represented?

Payne-James

APS, Association of Forensic Physicians; BAFM, British Association in Forensic Medicine; BMA, British Medical Association; CFM, clinical forensic medicine; FM, forensic medicine.

Switzerland

Sweden

Spain

Serbia South Africa

Response Scotland

Question U (Continued)

32

33

(b) Approximately 180 (majority of them are part-time basis). (b) Approximately 9.

(a) Approximately 120 million.

(a) Approximately 5.25 million.

(a) 7.5 million.

(a) 42 million.

(a) 0.5 million.

(a) 9 million.

(a) 7.2 million.

Nigeria

Scotland

Serbia

South Africa

Spain

Sweden

Switzerland

CFM, clinical forensic medicine; FP, forensic pathology.

(b,c) 70 (most do both CFM and FP).

(b) 35 (10 nonspecialists in training).

(b) Approximately 40–50.


(b) One part-time (a uniformed police officer).


(b) One trained forensic physician.

(a) 16 million.

(b) Eight.

(b) There are no data available on it. In peripheral regions, such as small towns and villages, even general duty doctors fulfill the work of CFM and FP.

The Netherlands

(a) 1.05 billion.

India

(b) None full-time. More than 1000 in different ways.

(a) Six million.

(a) 6.5 million.

Hong Kong

(b) Germany: 150 /state: 50.

(a) 20 million.

(a) Germany: 80 million/ North Rhine-Westphalia state: 16 million.

Germany



Israel

(a) 60 million.

Malaysia

(a) State: 5 million.

England and Wales

(c) FM = FP in Sweden.

(c) Approximately 9.


(c) Approximately 40–50.

(c) Approximately 12 (these are mainly university staff).

(c) Six—all currently outside Nigeria; one of the six has retired.


(c) Approximately 20 forensic pathologists

(c) Same eight.

(c) Same as (b).

(c) 18; this group does most of the criminal cases relating to CFM.

(c) Germany: 250/state: 50.



Can you give a rough estimate of (a) the population of your country/state, the number of medical practitioners working in (b) CFM, and (c) FP?

Response Australia

Question V


34

(a) DMJ (Clin), DFM, MMJ. (a,b) Yes, but they are the same.

(a) DMJ (Clin)(Lond.). (a) Yes, 3-yr postgraduate course in forensic medicine, which can only be done by a graduate in medicine and surgery. There is an entrance test for this course.

(a) No (a) No

(a) Yes (a) All trained in the United Kingdom, Germany, and United States. There are no local training programs.

(a,b) All UK qualifications, e.g., DMJ, DFM (not compulsory); pathologists MRCPath, DFM, DMJ, and one available from the RCP (Ed).

(a,b) No qualifications but training program. (a) No, but being established.

(a,b) There are national test (competitive examinations on supreme court-Ministry of Justice) to be admitted in the National Corps of Forensic surgeons (Cuerpo Nacional de Médicos Forenses). The professionals are the ones who conduct both CFM and FP. (a) Yes (b) Yes

(a,b) Yes, qualifications that cover both fields.

England and Wales Germany

Hong Kong India

Israel Malaysia

The Netherlands Nigeria

Scotland

Serbia South Africa

Spain

Sweden

Switzerland

CFM, clinical forensic medicine; FP, forensic pathology.

(a) Yes

Response Australia

(b) Yes

(b) Yes (b) Same as (a).

(b) Yes (b) Master of Pathology (Forensic)—4-yr course.

(b) DMJ (Path)(Lond.), FHKCPath, FHKAM. (b) Same as (a).

(b) MRCPath, DFM, DMJ, (Path).

(b) Yes

Are specific qualifications available for (a) CFM or (b) FP?

Question W

34 Payne-James

(a) (a)

(a) (a)

(a) (a) (a) (a) (a) (a)

The Netherlands Nigeria

35

Scotland Serbia South Africa Spain Sweden Switzerland

No No No Yes Yes Yes (but only at university institutes).

(b) Not officially. (b) Locally trained histopathologists and medical officers unfortunately often assume this role. (b) Yes (b) Yes (b) Yes, but still unqualified are working. (b) Yes (b) Yes (b) Yes (but only at university institutes).

(b) Yes (b) Same as (a).

Yes Yes Yes Yes Same as (a).

Israel Malaysia

(b) (b) (b) (b) (b)

(a) (a) (a) (a) (a)

Response Australia England and Wales Germany Hong Kong India

Yes, in full-time practice only. No Yes No No, as stated above, they are not mandatory. Although a great prestige is accorded to the report of people who have such a qualification. No Ordinary doctors undertake a large part of routine autopsies and clinical cases. Depending on the availability, difficult or complicated cases are handled by specialists. Not yet. No

Are such qualifications mandatory to practice in (a) clinical forensic medicine or (b) forensic pathology?

Question X


36

Payne-James

REFERENCES 1. Smith, S. The history and development of forensic medicine. Br. Med. J. 599–607, 1951. 2. Traill, T. S. Outlines of a course of lectures on medical jurisprudence, 2nd ed. Adam & Charles Black, Edinburgh, Scotland, 1840. 3. Amundsen, D. W., Ferngren, G. B. The physician as an expert witness in Athenian law. Bull. Hist. Med. 51:202–213, 1977. 4. Amundsen, D. W., Ferngren, G. B. Forensic role of physicians in Roman law. Bull. Hist. Med. 53:39–56, 1979. 5. Brittain, R. P. Origins of legal medicine. Roman law: Lex Duodecim Tabularum. Medico-Legal J. 35:71–72, 1967. 6. Amundsen, D. W., Ferngren, G. B. The forensic role of physicians in Ptolemaic and Roman Egypt. Bull. Hist. Med. 52:336–353, 1978. 7. Cassar, P. A medicolegal report of the sixteenth century from Malta. Med. Hist. 18:354–359, 1974. 8. Beck T. R., Darwall, J. Elements of medical jurisprudence, 3rd ed. Longman, London, UK, 1829. 9. Hunter, W. On the uncertainty of the signs of murder in the case of bastard children. London, UK, 1783. 10. Smith, J. G. The principles of forensic medicine systematically arranged and applied to British practice. Thomas & George Underwood, London, UK, 1821. 11. Davis, B. T. George Edward Male, M. D., the father of English medical jurisprudence. Proc. Royal Soc. Med. 67:117–120, 1974. 12. Taylor, A. S. A manual of medical jurisprudence. John Churchill, London, UK, 1844. 13. Traill, T. S. Outlines of a course of lectures on medical jurisprudence. Adam & Charles Black, Edinburgh, Scotland, 1834. 14. Cordner, S. M., Ranson, D. L., Singh, B. The practice of forensic medicine in Australasia: a review. Aust. N. Z. J. Med. 22:477–485, 1992. 15. Gee, D. J., Mason, J. K. The courts & the doctor. Oxford University Press, Oxford, UK, 1990. 16. Guy, W. A. Principles of forensic medicine. Henry Renshaw, London, UK, 1844. 17. Payne-James, J. J. Clinical forensic medicine. J. Clin. Forensic Med. 1:1, 1994. 18. Three-faced practice: doctors and police custody [editorial]. Lancet. 341:1245– 1247, 1993. 19. Grant, G. The diary of a police surgeon. C. Arthur Pearson, London, UK, 1920. 20. Payne-James, J. J. Questionnaire on “Global Clinical Forensic Medicine,” 4th Annual Clinical Forensic Medicine Postgraduate Conference, Louisville, KY, 1997. 21. Payne-James, J. J., Busuttil, A., Smock, W. Forensic medicine: clinical and pathological aspects. Greenwich Medical Media, London, UK, 2003. 22. Herring, J., Stark, M. M. The role of the independent forensic physician. Education & Research Committee of the Association of Forensic Physicians. Association of Forensic Physicians, East Kilbride, Glasgow, UK, 2003.

Fundamental Principals

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Chapter 2

Fundamental Principles Roy N. Palmer 1. INTRODUCTION Although medicine is an international discipline, practiced in much the same way throughout the English-speaking world, laws vary considerably from country to country. Much of the law applicable in the United States and in the countries of the Commonwealth derives from the English common law, but medical practitioners should not assume that the laws of their own countries or states will necessarily apply in other countries or states even if medical practices are indistinguishable. In this chapter, the author attempts to establish principles of general applicability; however, it is written from the perspective of the law applicable in England and Wales and should be read with that in mind. Recently in the United Kingdom and elsewhere, many statutes relevant to medical practice have been enacted. Ignorance of the law is no defense, and today’s doctors are at risk of prosecution for breaches of the law as no previous generation has been. Yet the teaching at undergraduate level of forensic (or legal) medicine is now patchy and variable, so today’s doctors are seldom well informed about laws that govern their daily practices. It is hoped that this chapter will help redress that position, but only a brief outline of some relevant law can be offered here. Doctors are advised to continue to subscribe to one of the traditional medical defense organizations (Medical Defence Union [MDU], Medical Protection Society [MPS], or Medical and Dental Defence Union of Scotland [MDDUS] in the United Kingdom, Canadian Medical Protective Association [CMPA] in Canada, or From: Clinical Forensic Medicine: A Physician’s Guide, 2nd Edition Edited by: M. M. Stark © Humana Press Inc., Totowa, NJ 37

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Palmer

one of the Australian defense bodies) or an equivalent organization or to take out adequate insurance to ensure that they have access to advice and legal representation for medicolegal problems arising from their professional work, and, of course, indemnity for any adverse awards of costs and damages for professional negligence.

1.1. Ethical Principles Doctors who practice as forensic physicians (forensic medical examiners [FMEs], forensic medical officers, or police surgeons) have a special responsibility toward detainees, subjects whose liberty is already infringed and who are at serious risk of future curtailment of their liberty. Although enactments in Europe, such as the Human Rights Act of 1998, have afforded better protection of the rights and liberties of citizens, the forensic physician has a real part to play in acting honorably by ensuring that the rights of the detainee are upheld in accordance with medical professional codes of ethics. A forensic physician who believes that the rights of the detainee are being ignored or abused may have a duty to report the concern to an authoritative person or body. It is not always appreciated that forensic physicians have two roles. First, they are independent medical assessors of victims and/or alleged perpetrators of crimes and, as such, no conventional therapeutic relationship exists. It is most important that this be made clear to the victims or detainees by the doctor, so that properly informed consent is secured for the proposed examination. Second, a therapeutic relationship may arise when advice or treatment or other therapeutic intervention is offered, but the nature of the therapeutic relationship will be constrained by the circumstances and by the forensic physician’s duty to pass information to police officers who will be responsible for observing the detainee or victim. Great care is necessary concerning issues of consent and confidentiality in such circumstances. Some ethical codes are national, drawn up by such bodies as national medical associations and medical boards or councils set up by the state (such as the British Medical Association and the General Medical Council [GMC] in the United Kingdom). Other codes of ethics are regional (e.g., the European Convention on Human Rights), whereas still others are international, such as the many codes and declarations prepared and published by the World Medical Association (see Appendix 1). Most of the ethical principles will be familiar to doctors who practice in countries that derive their laws from the Anglo-American common law system, but the detail of local rules and regulations will vary from nation to nation and state to state.


39

2. CONSENT Even when his or her life depends on receiving medical treatment, an adult of sound mind is entitled to refuse it. This reflects the autonomy of each individual and the right of self-determination. Lest reiteration may diminish the impact of this principle, it is valuable to recognise the force of the language used when the right of self determination was most recently considered in the House of Lords (1). It is well established English law that it is unlawful, so as to constitute both a tort (a civil wrong) and the crime of battery, to administer medical treatment to an adult who is conscious and of sound mind without his consent. Such a person is completely at liberty to decline to undergo treatment even if the result of his doing so will be that he will die (2). The principle of self-determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or to care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so…To this extent, the principle of the sanctity of human life must yield to the principle of self-determination …and, for present purposes perhaps more important, the doctor’s duty to act in the best interests of his patient must likewise be qualified (3). Any treatment given by a doctor to a patient which involves any interference with the physical integrity of the patient is unlawful unless done with the consent of the patient: it constitutes the crime of battery and the tort of trespass to the person (4). A doctor has no right to proceed in the face of objection, even if it is plain to all, including the patient, that adverse consequences and even death will or may ensue (5).

The author can do no better than to open a discussion of the topic of consent by quoting the powerful and unambiguous language of the law lords in a leading case. The underlying reason for this position: …is that English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by coups d’etat but by gradual erosion; and often it is the first step that counts. So it would be unwise to make even minor concessions (6). The foregoing applies to all adults who are mentally competent; when a patient lacks the capacity to make decisions about whether to consent to treatment (e.g., when he or she is unconscious or suffering from mental disability),

40

Palmer

the medical practitioners who are responsible for his or her treatment must act in the patient’s best interests and, if appropriate, may conduct major invasive treatments without expressed consent (7).

2.1. Requisites for Consent To intervene without consent may give rise to criminal proceedings (for alleged trespass to the person) and may also give rise to tortious liability (a civil claim for damages). To protect against such proceedings, the medical practitioner should ensure that the patient is capable of giving consent, has been sufficiently well informed to understand and therefore to give a true consent, and has then expressly and voluntarily consented to the proposed investigation, procedure, or treatment. In the United Kingdom, the GMC has produced a booklet (8) outlining guidance for doctors about seeking patients’ consent with which any doctor who practices in the United Kingdom must comply.

2.1.1. Capacity If there is serious doubt about the patient’s capacity to give consent, it should be assessed as a matter of priority. The patient’s general practitioner or other responsible doctor may be sufficiently qualified to make the assessment, but in serious or complex cases involving difficult issues about the future health and well-being, or even the life of the patient, the issue of capacity to consent should be assessed by an independent psychiatrist (in England, ideally, but not necessarily, one approved under section 12 of the Mental Health Act of 1983) (9). If after assessment serious doubts still remain about the patient’s competence (e.g., the patient is incapable by reason of mental disorder of managing his or her property or affairs), it may be necessary to seek the involvement of the courts.

2.1.2. Understanding Risks and Warnings A signature on a form is not, of itself, a valid consent. For a valid, true, or real consent in law, the patient must be sufficiently well informed to understand that to which he or she is asked to give consent. The doctor must be satisfied that the patient is capable of the following: 1. He or she can comprehend and retain the relevant information. 2. He or she believes the information. 3. He or she can weigh the pros and cons to arrive at a choice (10).

To defend a doctor against a civil claim alleging lack of consent based on a failure to warn adequately, it is necessary to have more than a signature on a standard consent form. Increasingly, in medical negligence actions, it


41

is alleged that risks were not explained nor warnings given about possible adverse outcomes. Therefore, it is essential for the doctor or any other healthcare professional to spend adequate time explaining the nature and purpose of the intended investigation, procedure, or treatment in terms that the patient can understand. Risks and adverse outcomes should be discussed. The patient’s direct questions must be answered frankly and truthfully, as was made clear in the Sidaway case (11), and thus the discussions should be undertaken by those with adequate knowledge and experience to deal with them; ideally, the clinician who is to perform the operation or procedure. English law differs from the law in other common-law jurisdictions (e.g., Australia, Canada, and the United States) regarding the nature of the information that must be imparted for the consent to be “informed” and, therefore, valid. Increasingly, worldwide the courts will decide what the doctor should warn a patient about—applying objective tests, such as what a “prudent patient” would wish to know before agreeing. For example, in the leading Australian case (12), the court imposed a duty to warn about risks of remote (1 in 14,000) but serious complications of elective eye surgery, even though professional opinion in Australia at the time gave evidence that they would not have warned of so remote a risk. In the United States and Canada, the law about the duty to warn of risks and adverse outcomes has long been much more stringent. Many (but not all) US courts recognize a duty on a doctor to warn a patient of the risks inherent in the treatment proposed. In the leading case (13), the District of Columbia appeals court imposed an objective “prudent patient” test and enunciated the following four principles: 1. Every human being of adult years and sound mind has a right to determine what shall happen to his or her body. 2. Consent is the informed exercise of choice and that entails an opportunity to evaluate knowledgeably the options available and their attendant risks. 3. The doctor must therefore disclose all “material risks.” 4. The doctor must retain a “therapeutic privilege.”

A “material risk” was held to be one that a reasonable person, in what the doctor knows or should know to be the patient’s position, would likely attach significance to in deciding whether to forego the proposed treatment—this test is known as the “prudent patient test.” However, the court held that a doctor has a therapeutic privilege by which he or she is entitled to withhold from the patient information about risk if full disclosure would pose a serious threat of psychological detriment to the patient. In the leading Canadian case (14), broad agreement was expressed with the propositions expressed in the American case.

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English law continues to allow the doctor discretion in deciding what information is to be imparted to the particular patient being advised. The practitioner is not required to make an assessment based on the information to be given to an abstract “prudent patient;” rather, the actual patient being consulted must be assessed to determine what that patient should be told. However, the Sidaway and Bolitho (15) cases make clear that doctors must be supported by a body of professional opinion that is not only responsible but also scientifically and soundly based as determined by the court. The message for the medical and allied health care professions is that medical paternalism has no place where consent to treatment is concerned; patients’ rights to self-determination and personal autonomy based on full disclosure of relevant information is the legal requirement for consent.

2.1.3. Voluntary Agreement Consent obtained by fraud or duress is not valid. A doctor must be satisfied that the patient is giving a free, voluntary agreement to the proposed investigation, procedure, or treatment. Consent may then be given expressly or by implication. Express consent is given when the patient agrees in clear terms, verbally or in writing. A verbal consent is legitimate, but because disputes may arise about the nature and extent of the explanation and warnings about risks, often months or years after the event, it is strongly recommended that, except for minor matters, consent be recorded in written form. In the absence of a contemporaneous note of the discussions leading to the giving of consent, any disputed recollections will fall to be decided by a lengthy, expensive legal process. The matter then becomes one of evidence, with the likelihood that the patient’s claimed “perfect recall” will be persuasive to the court in circumstances in which the doctor’s truthful concession is that he or she has no clear recollection of what was said to this particular patient in one of hundreds of consultations undertaken. A contemporaneous note should be made by the doctor of the explanation given to the patient and of warnings about risks and possible adverse outcomes. It is helpful to supplement but not to substitute the verbal explanation with a printed information leaflet or booklet about the procedure or treatment. The explanation should be given by the clinician who is to undertake the procedure—it is not acceptable to “send the nurse or junior hospital doctor” to “consent the patient.” For more complex and elective procedures, it is wise to give the patient some time to reflect on the advice and on the choices, offering to meet him or her again before a final decision is made and to respond to any interim questions that the patient might wish to pose. For simple procedures (e.g., taking


43

blood pressure and performing a venepuncture), it may be sufficient for consent to be implied—by the patient proffering an arm for the purpose. However, in circumstances in which the procedure has a forensic rather than a therapeutic content and the doctor is not the patient’s usual medical attendant but may be carrying out tasks that affect the liberty of the individual (e.g., as a forensic physician or as an assessor in a civil claim), it is prudent to err on the side of caution. If no assumptions are made by the doctor and express agreement is invariably sought from the patient—and documented contemporaneously—there is less chance of misunderstandings and allegations of duress or of misleading the individual.

2.2. Adult Patients Who Are Incompetent Since the implementation of the 1983 Mental Health Act in England and Wales (and the equivalent in Scotland) no parent, relative, guardian, or court can give consent to the treatment of an adult patient who is mentally incompetent (16). The House of Lords had to consider a request to sterilize a 36-yr-old woman with permanent mental incapacity and a mental age of 5 years who had formed a sexual relationship with a fellow patient. The court held that no one, not even the courts, could give consent on behalf of an adult who was incompetent. (This is because the 1983 act removed the parens patriae jurisdiction of the courts in England and Wales; those jurisdictions in which courts retain parens patriae powers retain the ability to provide consent in such circumstances.) However, the House of Lords made clear that doctors could act in the best interests of their adult patients who are incompetent by treating them in accordance with a responsible body of professional opinion (i.e., in accord with the Bolam principle, ref. 17).

2.3. Age of Consent In England, section 8 of the Family Law Reform Act 1969 provides that any person of sound mind who has attained 16 year of age may give a valid consent to surgical, medical, or dental treatments. The consent of a parent or guardian is not required. For those under 16 years of age the House of Lords decided (18) that valid consent could be given by minors, provided that they understood the issues. The case concerned the provision of contraceptive advice to girls younger than 16 years in circumstances in which a parent objected. The House of Lords held that parental rights to determine whether a child younger than 16 years received treatment terminated if and when the child achieved a sufficient understanding and intelligence to enable him or her to comprehend the issues involved. It is the capacity to understand, regardless of age or status, that is the determinant factor.

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2.4. Intimate Samples and Intimate Searches Section 62 of the Police and Criminal Evidence Act of 1984 (and the equivalent statute in Scotland) provides that intimate samples can only be taken from an individual if authorized by a police inspector (or higher ranking police officer) and if consent is obtained. For this purpose the age of consent is 17 (not 16) years. For those between 14 and 17 years of age, the consent of both the detainee and the parent or guardian is required, and for those younger than 14 years of age, only the consent of the parent or guardian is statutorily required. Section 55 of the Police and Criminal Evidence Act (and an equivalent provision in Scotland) provides that an intimate search of an individual may be conducted on the authority of a police officer of at least the rank of inspector only if there are grounds for suspecting that an individual is hiding on himself or herself either an object that might be used to cause physical injury while he is detained or a class A controlled drug. A doctor called on to conduct an intimate search will be wise to consider carefully whether a detainee is likely to be able to give a free and voluntary consent in such circumstances; an intimate search should not be conducted unless the doctor is thoroughly satisfied that the individual has given valid consent. An intimate search may, exceptionally, be conducted by a doctor if he or she believes it necessary to remove a concealed object that is an immediate danger to the life or personal safety of those responsible for the detainee’s supervision.

2.5. Video and Audio Recordings The GMC has issued guidance (19) requiring doctors to inform patients before making a video or audio recording and, except in situations in which consent may be understood from a patient’s cooperation with a procedure (e.g., radiographic investigation), to obtain his or her explicit consent. Doctors may make recordings without consent in exceptional circumstances, such as when it is believed that a child has been the victim of abuse. If a recording has been made in the course of investigation or treatment of a patient but the doctor now wishes to use it for another purpose, the patient’s consent must be obtained. Recordings are not to be published or broadcast in any form without the explicit, written consent of the patient. Consent is required before recordings are published in textbooks or journals or before the public is allowed access to them. If patients can be identified from recordings, a doctor must ensure that the interests and well-being of the patient take precedence over all other considerations. This is especially so for patients who are mentally ill or disabled,


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seriously ill, or children or other vulnerable people. When disability prevents patients from giving informed consent, the GMC advises the doctor to obtain agreement from a close relative or caregiver; where children lack the understanding to consent, the permission of the parent or guardian is recommended.

2.6. Recording Telephone Calls Many countries have laws or regulations that govern the electronic recording of telephone conversations, which are designed to protect individuals’ rights. Commonly, a provision will be included stating that persons whose telephone calls are being recorded must be informed of the fact—the details vary from country to country. In the United Kingdom, for example, the Telecommunications Act of 1984 requires that the person making a recording shall make “every reasonable effort to inform the parties” of doing so. “Every reasonable effort” is not defined statutorily, but the Office of Telecommunications , which is a government-appointed regulatory body, now subsumed within OfCom (Website: www.ofcom.org.uk), has issued guidance. Reasonable effort may be achieved by the use of warning tones, prerecorded messages, verbal warnings given by a telephone operator, or written warnings in publicity material. A recording may be an invaluable aid for forensic evidence or to help refute a complaint or claim for compensation, but practitioners who make electronic recordings of telephone calls must ensure that they comply with local laws and practice codes.

2.7. Emergencies Before leaving the topic of consent, it is necessary to state clearly that in a medical emergency in which a patient is unconscious and thus unable to give or withhold consent and there is no clear instruction to the contrary in the form of a valid, extant advance directive made by the patient, treatment that is clearly essential to save life or prevent serious harm may and indeed should be given. However, nonurgent treatment should be deferred until the patient is able to give consent.

3. CONFIDENTIALITY “And whatsoever I shall see or hear in the course of my profession, as well as outside my profession in my intercourse with men, if it be what should not be published abroad, I will never divulge, holding such things to be holy secrets…” (20). “…I will respect the secrets which are confided in me, even after the patient has died …” (21).

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Information acquired by a medical practitioner from or about a patient in the course of his or her professional work is confidential and must never be disclosed to others without either the consent of the patient or other proper justification. Confidentiality is primarily a professional conduct matter for the medical practitioner, but patients also have a legal right to confidentiality, protected by law. The GMC in the United Kingdom and other medical councils and medical boards worldwide have published guidance to doctors, making it clear that a breach of confidentiality is a serious professional offense. The GMC’s current guidance (23) requires doctors to: “Treat information about patients as confidential. If in exceptional circumstances there are good reasons why you should pass on information without a patient’s consent, or against a patient’s wishes, you must follow our guidance “Confidentiality: Protecting and Providing Information” and be prepared to justify your decision to the patient, if appropriate, and to the GMC and the courts, if called upon to do so.”

A separate GMC booklet (24) sets out more detailed guidance, including the principles of confidentiality and exceptions to the general rule. Doctors are responsible for the safekeeping of confidential information against improper disclosure when it is stored, transmitted to others, or discarded. If a doctor plans to disclose information about a patient to others, he or she must first inform the patient of that intention and make clear that the patient has an opportunity to withhold permission for its disclosure. Patients’ requests for confidentiality must be respected, except for exceptional circumstances, such as where the health or safety of others would otherwise be at serious risk. If confidential information is disclosed, the doctor should release only as much as is necessary for the purpose and must always be ready and willing to justify the disclosure—for example, to the relevant medical council or board or to the courts. Where confidential information is to be shared with healthcare workers or others, the doctor must ensure that they, too, respect confidentiality.

3.1. Death and Confidentiality The duty of confidentiality extends beyond the death of the patient. The extent to which information may properly be disclosed after the death of a patient depends on the circumstances. In general, it is prudent to seek the


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permission of all the personal representatives of the deceased patient’s estate, such as the executors or administrators, before any information is disclosed. They, in turn, should be advised of the foreseeable consequences of disclosure. A doctor with any doubt should take advice from a professional advisory organization, such as a protection or defense organization.

3.2. Detention and Confidentiality A forensic physician (or equivalent) should exercise particular care over confidentiality when examining persons who are detained in custody. When taking the medical history and examining the detainee, it is common for a police or other detaining official to be in attendance, perhaps as a “chaperone” or simply as a person in attendance, nearby to overhear the conversation. Such officials will not owe to the detainee the same duty of confidentiality that is owed by a medical or nurse practitioner nor be subject to similar professional sanctions for a breach of confidentiality. The doctor called on to examine a detainee must take great care to ensure that the person being examined clearly understands the role of the forensic physician and the implications for confidentiality. The detainee must understand and agree to the terms of the consultation before any medical information is gathered, preferably giving written consent. The examining doctor should do everything possible to maintain the confidentiality of the consultation. An accused person’s right of silence, the presumption of innocence, rights under human rights legislation, and so forth may produce areas of conflicting principle. The doctor’s code of professional conduct may conflict with statutory codes to which custody officials are bound (e.g., the duty on a police officer to record events). It may be essential to take the medical history in strict confidence, commensurate with adequate safeguards against violent behavior by the prisoner, and insist on a neutral chaperone for a physical examination. In the rest of this chapter, it is possible only to highlight the issues; their resolution will vary according to local rules and circumstances. In the United Kingdom, guidance for forensic physicians is available from their professional bodies (25).

3.3. Exceptions to the General Duty of Confidentiality Under several circumstances the doctor may legitimately disclose information gained about a patient during his or her professional work. For a full consideration, refer to the GMC guidance (24) or equivalent locally relevant guidance. In summary, the main exceptions are listed in Subheadings 3.3.1. to 3.3.5.

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3.3.1. The Patient’s Permission The confidences are those of the patient, not those of the doctor, so if a patient requests or consents to their disclosure, the information may be perfectly and properly disclosed within the terms of the patient’s permissions. Consent to disclose confidential information may be given by the patient in a range of circumstances. These include employment and insurance purposes, housing and welfare, testimonials and references, or legal proceedings (whether civil or criminal or family law matters, etc.). However, care must be taken to ensure that disclosure is limited strictly to the terms of the patient’s permission and that there is no disclosure to parties with whom the patient may be in contention unless the patient expressly agrees to it. (The classic pitfalls are disclosure to the advisers of the other spouse or other party in contested divorce, child custody, or personal injury cases.)

3.3.2. The Patient’s Best Interests In circumstances in which a patient is incapable of giving consent because of incapacity, immaturity, etc., and has refused to allow the doctor to speak to other appropriate persons, the doctor may disclose information to other appropriate persons if convinced that it is in the patient’s best medical interests. If a doctor believes that a patient is the victim of physical or sexual abuse or neglect, he or she may disclose relevant information to an appropriate person or statutory agency in an attempt to prevent further harm to the patient. Another example of this exception is when a doctor believes that seeking permission for the disclosure would be damaging to the patient but that a close relative should know about the patient’s condition (e.g., terminal or some psychiatric illnesses). The doctor must always act in the patient’s best medical interests and be prepared to justify his or her decision. Advice may be taken from appropriate colleagues and/or from a protection or defense organization or other professional body.

3.3.3. The Public Interest, Interest of Others, or Patients Who Are Violent or Dangerous Disclosure in the interests of others may be legitimate when they are at risk because a patient refuses to follow medical advice. Examples include patients who continue to drive when unfit to do so and against medical advice or who place others at risk by failing to disclose a serious communicable disease. Each case demands careful consideration, and doctors who have any doubt regarding how best to proceed should not hesitate to seek appropriate counsel.


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Doctors may also be approached by the police for information to assist them in apprehending the alleged perpetrator of a serious crime. A balance must be struck between the doctor’s duty to preserve the confidences of a patient and his or her duty as a citizen to assist in solving a serious crime where he or she has information that may be crucial to a police inquiry. In cases of murder, serious assaults, and rape in which the alleged assailant is still at large, the doctor may be persuaded that there is a duty to assist in the apprehension of the assailant by providing information, acquired professionally, that will be likely to assist the police in identifying and apprehending the prime suspect or suspects. However, where the accused person is already in custody, the doctor would be wise not to disclose confidential information without the agreement of the patient or legal advisers or an order from the court. Each case must be weighed on its own facts and merits, and the doctor may wish to seek advice from an appropriate source, such as a protection or defense organization. Guidance about gunshot wounds is given in Subheading 3.3.6. A patient who is violent or dangerous poses particular dilemmas for the doctor. In the course of a consultation, a patient may tell a doctor that he or she intends to perpetrate some serious harm on another person—perhaps a close relative or friend or someone with whom there is a perceived need to “settle an old score.” Each case must be carefully assessed on its own facts and merits, and careful clinical judgement exercised; however, under some circumstances, a doctor may feel obligated to override the duty of confidentiality to the individual and to disclose confidential information to the intended victim, the police, or another person in authority with the power to take appropriate action. Indeed, a failure to act in such circumstances has led to adverse judicial rulings, as in the Tarasoff (26) case in California, in which a specialist psychologist failed to give a warning to the girlfriend of a patient who was later murdered by the patient. The court decided that although no general common law duty exists to protect or warn third parties, a special relationship may impose such a duty. In the United Kingdom, a psychiatrist was sued because he had released, without the consent of a patient who was violent, a report prepared at the request of the patient’s solicitors in connection with an application for release from detention. The psychiatrist advised against release, and the solicitors decided not to make use of the report. The psychiatrist was so concerned about his findings that he released a copy of the report to the relevant authorities and, as a consequence, the patient’s application for release was refused. The patient’s subsequent civil claim for compensation was rejected by the courts (27), which held

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that the psychiatrist was entitled, under the circumstances, to put his duty to the public above the patient’s right to confidentiality.

3.3.4. Medical Teaching, Research, and Audit In general, data should be made anonymous. Every reasonable effort must be made to inform the concerned patients and to obtain their permission to disclose or publish case histories, photographs, and other information. Where consent cannot be obtained, the matter should be referred to a research ethics committee for guidance. The GMC and similar bodies give guidance (8,23), and reputable medical journals have strict codes of practice, requiring that appropriate consent be obtained before even anonymous data are published, but the topic is not discussed in this chapter.

3.3.5. Judicial and Statutory Exceptions Statutory provisions may require a doctor to disclose information about patients. In the United Kingdom they include, for example, notifications of births, miscarriages, and deaths; notifications of infectious diseases; notifications of industrial diseases and poisonings; and notifications under the provisions of the Abortion Act of 1967. A doctor may be required to attend court and to answer questions if ordered to do so by the presiding judge, magistrate, or sheriff. When in the witness box, the doctor may explain that he or she does not have the consent of the patient to disclose the information (or indeed that the patient has expressly forbidden the doctor to disclose it), but the court may rule that the interests of justice require that the information held by the doctor about the patient be disclosed to the court. The doctor must then answer or risk being charged with contempt of court. However, disclosure should only be made in judicial proceedings in one of two situations: first, when the presiding judge directs the doctor to answer, or second, when the patient has given free and informed consent. A request by any other person (whether police officer, court official, or lawyer) should be politely but firmly declined. As always, the doctor’s protection or defense organization will be pleased to advise in any case of doubt. Other statutory provisions of forensic relevance exist, but they are peculiar to individual countries or states and are not included here.

3.3.6. Reporting Gunshot Wounds In September 2003, the GMC published new guidance, Reporting Gunshot Wounds Guidance for Doctors Working in Accident and Emergency


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Departments, developed in conjunction with the Association of Chief Police Officers. The guidance may be obtained from the GMC and viewed on its Website at www.gmc-uk.org. In summary, it states that: “The police should be told whenever a person has arrived at a hospital with a gun shot wound,” but “at this stage identifying details, such as the patient’s name and address, should not usually be disclosed.” The doctor with clinical responsibility for the patient should ensure that the police are notified but may delegate the task to any member of the accident and emergency staff. Ordinarily, the patient’s consent to disclose his or her name and other information must be sought and the treatment and care of the patient must be the doctor’s first concern. If the patient’s consent is refused, information may be disclosed only when the doctor judges that disclosure would prevent others from suffering serious harm or would help prevent, detect, or prosecute a serious crime. In short, the usual principles of confidentiality apply, and any doctor who breaches confidentiality must be prepared to justify his or her decision.

4. NOTEKEEPING All doctors should keep objective, factual records of their consultations with patients and of other professional work. Not only is this desirable per se, but also it is now a professional requirement. Current GMC guidance (23) states that in providing care doctors must keep clear, accurate, and contemporaneous patient records that record the relevant findings, decisions made, information given to the patient, and any drugs or other treatment provided. Good notes assist in the care of the patient, especially when doctors work in teams or partnership and share the care of patients with colleagues. Notes then help to keep colleagues well informed. Good notes are invaluable for forensic purposes, when the doctor faces a complaint, a claim for compensation, or an allegation of serious professional misconduct or poor performance. The medical protection and defense organizations have long explained that an absence of notes may render indefensible that which may otherwise have been defensible. The existence of good notes is often the key factor in preparing and mounting a successful defense to allegations against a doctor or the institution in which he or she works. Notes should record facts objectively and dispassionately; they must be devoid of pejorative comment, wit, invective, or defamatory comments. Patients and their advisers now have increasing rights of access to their records and rights to request corrections of inaccurate or inappropriate information.

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5. ACCESS TO HEALTH RECORDS Access to medical and other health records, which is provided for by statute law, varies considerably from one jurisdiction to another. In English law, patients have enjoyed some rights of access to their medical records since the passage of the Administration of Justice Act of 1970. The relevant law is now contained in the Data Protection Act of 1998, which came into effect on March 1, 2000, and repealed previous statutory provisions relating to living individuals, governing access to health data, such as the Data Protection Act of 1984 and the Access to Health Records Act of 1990. However, the Access to Medical Reports Act of 1988 remains fully in force. Unfortunately, space considerations do not permit an explanation of the detailed statutory provisions; readers are respectfully referred to local legal provisions in their country of practice. The Data Protection Act of 1998 implements the requirements of the European Union Data Protection Directive, designed to protect people’s privacy by preventing unauthorized or inappropriate use of their personal details. The Act, which is wide ranging, extended data protection controls to manual and computerized records and provided for more stringent conditions on processing personal data. The law applies to medical records, regardless of whether they are part of a relevant filing system. As well as the primary legislation (the Act itself), secondary or subordinate legislation has been enacted, such as the Data Protection (Subject Access Modification) (Health) Order of 2000, which allows information to be withheld if it is likely to cause serious harm to the mental or physical health of any person. Guidance notes about the operation of the legislation are available from professional bodies, such as the medical protection and defense organizations. In the United Kingdom, compliance with the requirements of the data protection legislation requires that the practitioner adhere to the following: • Is properly registered as a data controller. • Holds no more information about patients than is needed for their medical care and uses it only for that purpose. • Stores records securely and restricts access to authorized personnel only. • Complies with patients’ legitimate requests for access to their health records.

6. PREPARATION OF REPORTS Doctors are frequently asked to prepare reports for medicolegal reasons. It is important to understand the nature of the request and what is required—a simple report of fact, a report on present condition and prognosis after a medi-


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cal examination, an expert opinion, or a combination of these. Because a doctor possesses expertise does not necessarily make him or her an expert witness every time a report is requested. A report may be required for a variety of reasons, and its nature and content must be directed to the purpose for which it is sought. Is it a report of the history and findings on previous examination because there is now a criminal prosecution or civil claim? Is an expert opinion being requested based on the clinical notes made by others? Is it a request to examine the patient and to prepare a report on present condition and prognosis? Is it a request for an expert opinion on the management of another practitioner for the purposes of a medical negligence claim? The request should be studied carefully to ascertain what is required and clarification sought where necessary in the case of any ambiguity. The fee or at least the basis on which it is to be set should also be agreed in advance of the preparation of the report. If necessary, the appropriate consents should be obtained and issues of confidentiality addressed. Care must be taken in the preparation of any report. A medicolegal report may affect an individual’s liberty in a criminal case or compensation in a personal injury or negligence action. A condemnatory report about a professional colleague may cause great distress and a loss of reputation; prosecuting authorities may even rely on it to decide whether to bring homicide charges for murder (“euthanasia”) or manslaughter (by gross negligence). Reports must be fair and balanced; the doctor is not an advocate for a cause but should see his or her role as providing assistance to the lawyers and to the court in their attempt to do justice to the parties. It must always be conisdered that a report may be disclosed in the course of legal proceedings and that the author may be cross-examined about its content, on oath, in court, and in public. A negligently prepared report may lead to proceedings against the author and perhaps even criminal proceedings in exceptional cases. Certainly a civil claim can be brought if a plaintiff’s action is settled on disadvantageous terms as a result of a poorly prepared opinion. There is also the attendant risk of adverse judicial comment and press publicity. The form and content of the report will vary according to circumstances, but it should always be well presented on professional notepaper with relevant dates and details carefully documented in objective terms. Care should be taken to address the questions posed in the letter of instructions from those who commissioned it. If necessary, the report may be submitted in draft before it is finalized, but the doctor must always ensure that the final text represents his or her own professional views and must avoid being persuaded by counsel or solicitors to make amendments with which he or she is not content: it is the

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doctor who will have to answer questions in the witness box, and this may be a most harrowing experience if he or she makes claims outside the area of expertise or in any way fails to “come up to proof” (i.e., departs from the original statement). In civil proceedings in England and Wales, matters are now governed by the Civil Procedure Rules and by a Code of Practice approved by the head of civil justice. Any practitioner who provides a report in civil proceedings must make a declaration of truth and ensure that his or her report complies with the rules.

7. ATTENDANCE AT COURT Courts broadly consist of two types: criminal and civil. Additionally, the doctor will encounter the Coroners Court (or the Procurators Fiscal and Sheriffs in Scotland), which is, exceptionally, inquisitorial and not adversarial in its proceedings. A range of other special courts and tribunals exists, from ecclesiastical courts to social security tribunals; these are not described here. A doctor may be called to any court to give evidence. The type of court to which he or she is called is likely to depend on the doctor’s practice, specialty, and seniority. The doctor may be called to give purely factual evidence of the findings when he or she examined a patient, in which case the doctor is simply a professional witness of fact, or to give an opinion on some matter, in which case the doctor is an expert witness. Sometimes, a doctor will be called to give both factual and expert evidence. Usually the doctor will receive fair warning that attendance in court is required and he or she may be able to negotiate with those calling him or her concerning suitable dates and times. Many requests to attend court will be made relatively informally, but more commonly a witness summons will be served. A doctor who shows any marked reluctance to attend court may well receive a formal summons, which compels him or her to attend or to face arrest and proceedings for contempt of court if he or she refuses. If the doctor adopts a reasonable and responsible attitude, he or she will usually receive the sympathetic understanding and cooperation of the lawyers and the court in arranging a time to give evidence that least disrupts his or her practice. However, any exhibition of belligerence by the doctor can induce a rigid inflexibility in lawyers and court officials—who always have the ability to “trump” the doctor by the issuance of a summons, so be warned and be reasonable. Evidence in court is given on oath or affirmation. A doctor will usually be allowed to refer to any notes made contemporaneously to “refresh his memory,” although it is courteous to seek the court’s agreement.


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7.1. Demeanor in Court In the space available, it is not possible to do more than to outline good practice when giving evidence. Court appearances are serious matters; an individual’s liberty may be at risk or large awards of damages and costs may rely on the evidence given. The doctor’s dress and demeanor should be appropriate to the occasion, and he or she should speak clearly and audibly. As with an oral examination for medical finals or the defense of a written thesis, listen carefully to the questions posed. Think carefully about the reply before opening your mouth and allowing words to pour forth. Answer the question asked (not the one you would like it to have been) concisely and carefully, and then wait for the next question. There is no need to fill all silences with words; the judge and others will be making notes, and it is wise to keep an eye on the judge’s pen and adjust the speed of your words accordingly. Pauses between questions allow the judge to finish writing or counsel to think up his or her next question. If anything you have said is unclear or more is wanted from you, be assured that you will be asked more questions. Be calm and patient, and never show a loss of temper or control regardless of how provoking counsel may be. An angry or flustered witness is a gift to any competent and experienced counsel, as is a garrulous or evasive witness. Try to use simple language devoid of jargon, abbreviations, and acronyms. Stay well within your area of skill and expertise, and do not be slow to admit that you do not know the answer. Your frankness will be appreciated, whereas an attempt to bluff or obfuscate or overreach yourself will almost certainly be detrimental to your position. Doctors usually seek consensus and try to avoid confrontation (at least in a clinical setting). They should remember that lawyers thrive on the adversarial process and are out to win their case, not to engage on a search for truth. Thus, lawyers will wish to extract from witnesses answers that best support the case of the party by whom they are retained. However, the medical witness is not in court to “take sides” but rather to assist the court, to the best of the expert witness’ ability, to do justice in the case. Therefore, the witness should adhere to his or her evidence where it is right to do so but must be prepared to be flexible and to make concessions if appropriate, for example, because further evidence has emerged since the original statement was prepared, making it appropriate to cede points. The doctor should also recall the terms of the oath or affirmation—to tell the truth, the whole truth, and nothing but the truth—and give evidence accordingly.

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8. THE DUTIES OF EXPERT WITNESSES Some medical practitioners have made a career from giving expert opinions, and a few have brought the profession into disrepute by being demonstrably partisan or by giving opinion evidence that is scientifically unsupportable. The courts have now laid down guidance (28) for expert witnesses, and the UK Expert Witness Institute has prepared a code of practice (29) for experts. The essential requirements for experts are as follows: • Expert evidence presented to the court should be seen as the independent product of the expert, uninfluenced regarding form or content by the exigencies of litigation (30). • Independent assistance should be provided to the court by way of objective unbiased opinion regarding matters within the expertise of the expert witness (31). An expert witness in the court should never assume the role of advocate. • Facts or assumptions on which the opinion was based should be stated together with material facts that could detract from the concluded opinion. • An expert witness should make clear when a question or issue falls outside his or her expertise. • If the opinion was not properly researched because it was believed that insufficient data were available, that should be stated with an indication that the opinion is provisional. If the expert cannot assert that the report contains the truth, the whole truth, and nothing but the truth, that qualification should be stated on the report (32). • If after an exchange of reports an expert witness changes an opinion, the change of view/opinion should be communicated to the other parties through legal representatives without delay and, when appropriate, to the court.

The Expert Witness Institute (EWI) (33) has also produced an declaration for use by experts that follows the form recommended by Lord Woolf, the Chief Justice of England and Wales, in his review of civil justice procedures and that incorporates the legal principles just set out. The EWI Website (www.ewi.org.uk) provides an easy route to access several important documents. In England and Wales, new Civil Procedure Rules for all courts came into force on April 16, 1999 (34), and Part 35 establishes rules governing experts. The expert has an overriding duty to the court, overriding any obligation to the person who calls or pays him or her. An expert report in a civil case must end with a statement that the expert understands and has complied with the expert’s duty to the court. The expert must answer questions of clarification at the request of the other party and now has a right to ask the court for


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directions to assist him in conducting the function as an expert. The new rules make radical changes to the previous use of expert opinion in civil actions.

9. PITFALLS The potential pitfalls of forensic medical practice are many. Most pitfalls may be avoided by an understanding of the legal principles and forensic processes—a topic of postgraduate rather than undergraduate education now. The normal “doctor–patient” relationship does not apply; the forensic physician–detained person relationship requires that the latter understands the role of the former and that the former takes time to explain it to the latter. Meticulous attention to detail and a careful documentation of facts are required at all times. You will never know when a major trial will turn on a small detail that you once recorded (or, regrettably, failed to record). Your work will have a real and immediate effect on the liberty of the individual and may be highly influential in assisting the prosecuting authorities to decide whether to charge the detained person with a criminal offense. You may be the only person who can retrieve a medical emergency in the cells—picking up a subdural hematoma, diabetic ketoacidosis, or coronary thrombosis that the detaining authority has misinterpreted as drunkenness, indigestion, or simply “obstructive behavior.” Get it right, and you will assist in the proper administration of the judicial process, with proper regard for human rights and individual’s liberty. Get it wrong, and you may not only fail to prevent an avoidable death but also may lay yourself open to criminal, civil, and disciplinary proceedings. You clearly owe a duty of care to those who engage your services, for that is well-established law. The issue of whether a forensic physician owes a wider duty to the victims of alleged crime was decided in the English Court of Appeal during 1999 (35). A doctor working as an FME examined the victim of an alleged offense of rape and buggery (sodomy). The trial of the accused offender was fixed, and all prosecution witnesses were warned and fully bound, including the FME. The trial was scheduled to begin on December 7, and on December 6, the FME was warned that she would not be required to attend on the first day of trial but would be needed some time after that. The trial commenced on December 7, and the accused pleaded not guilty. On Friday, December 8, the FME was told that she would not be needed that day but would be required the following week. She did not state that this would cause any problem. However, on December 11, the FME left the country for a vacation. On December 14, the police officer in charge of the case spoke by telephone with the FME. She said she could not return to give evidence before December 19. The remain-

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der of the prosecution case was finished on December 14. The trial judge refused to adjourn the case until December 19. On December 20, the judge accepted a defense submission of no case to answer and directed the jury to return a verdict of not guilty. A few weeks later, the FME was convicted of contempt of court for failing to attend court to give evidence, and she was fined. The female victim commenced civil proceedings against the FME, alleging negligent conduct in failing to attend, as warned, to give evidence. In her claim, the claimant asserted that if the FME had given evidence (presumably in accordance with her witness statement), the trial judge would have refused the defense submission of no case to answer. The claimant also contended that on the balance of probability, the accused would have been convicted because the FME’s evidence would have undermined the credibility of the accused’s defense that no anal interference had occurred. The claimant claimed that the FME owed her a duty of care to take all reasonable steps to provide evidence of the FME’s examination in furtherance of the contemplated prosecution and to attend the trial of the accused as a prosecution witness when required. She claimed to suffer persistent stress and other psychological sequelae from failing to secure the conviction of her alleged assailant and knowing that he is still at large in the vicinity. The claimant did not contend that there was any general duty of care on the part of a witness actionable in damages at the suit of another witness who may suffer loss and damage through the failure of the first witness to attend and give evidence in accordance with his or her witness statement. When the case came before the Court of Appeal, Lord Justice StuartSmith stated that the attempt to formulate a duty of care as pleaded, “is wholly misconceived. If a duty of care exists at all, it is a duty to prevent the plaintiff from suffering injury, loss or damage of the type in question, in this case psychiatric injury. A failure to attend to give evidence could be a breach of such duty, but it is not the duty itself.” Later, Lord Justice Stuart-Smith stated: “it is quite plain in my judgment that the defendant, in carrying out an examination at the behest of the police of Crown Prosecution Service, did not assume any responsibility for the plaintiff’s psychiatric welfare; the doctor/patient relationship did not arise.” He concluded his judgment: “it is of no assistance to the plaintiff here in trying to construct a duty of care to attend court to give evidence which, as I have already pointed out, could amount to breach of a wider duty which is not alleged and could not be supported.”


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The other two Lords Justice of Appeal agreed. Lord Justice Clarke observed that: “In (the circumstances of the case) any duty of care owed (by the FME) must be very restricted. It seems to me that she must have owed a duty of care to carry out any examination with reasonable care, and thus, for example, not to make matters worse by causing injury to the plaintiff. It also seems to me to be at least arguable that where an FME carries out an examination and discovers that the person being examined has, say, a serious condition which needs immediate treatment, he or she owes a duty to that person to inform him or her of the position.” The plaintiff’s claim against the FME for damages was dismissed, and it was confirmed that there was no duty of care owed by the FME to the victim to attend the trial as a prosecution witness when required.

REFERENCES 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

St George’s Healthcare NHS Trust v S [1998] 3WLR 936, 950E per Judge LJ. Airedale NHS Trust v Bland [1993] AC789, 857 per Lord Keith of Kinkel. Ibid. per Lord Goff of Chieveley, 864. Ibid. per Lord Browne-Wilkinson, 882. Ibid. per Lord Mustill, 891. S. v McC and M; W v W [1972] AC 24 per Lord Reid, 43. St George’s Healthcare NHS Trust case [ibid.], 951G. General Medical Council. Seeking patients’ consent: the ethical considerations. The General Medical Council, London, UK, 1998. St George’s Healthcare NHS Trust case [ibid], 969C. In re C [1994] 1WLR 290. Sidaway v Board of Governors of the Bethlem Royal and Maudsley Hospitals [1985] AC 871; [1985] 1 AllER 643. Rogers v Whitaker [1992] 175 CLR 479; [1992] AMLD 6993; 16 BMLR, 148 (Australian High Court). Canterbury v Spence [1972] 464 F2d 772 (US App DC). Reibl v Hughes 114 DLR 3d 1 (Canadian Supreme Court 1980); [1980] 2 SCR 880. Bolitho v City & Hackney Health Authority [1998] AC 232 ; [1998] 1 Lloyd’s Rep. Med. 26. In re F [1990] 2.AC 1. Bolam v Friern Hospital Management Committee [1957] 2 AllER 118; [1957] 1 WLR 582. Gillick v West Norfolk & Wisbech Area Health Authority [1984] AC 112. General Medical Council. Making and using visual and audio recordings of patients. General Medical Council, London, UK, 2002. Extract from the Hippocratic Oath. 5th century BC.

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21. Extract from The Declaration of Geneva. World Medical Association, 1948, restated 1983. 22. Extract from The International Code of Medical Ethics. World Medical Association, Geneva, Switzerland, 1983. 23. General Medical Council. Good medical practice. General Medical Council, London, UK, 2001. 24. General Medical Council. Confidentiality. General Medical Council, London, 2000. 25. Association of Police Surgeons and British Medical Association. Revised interim guidelines on confidentiality for police surgeons in England, Wales and Northern Ireland. Association of Police Surgeons (now the Association of Forensic Physicians), East Kilbride. British Medical Association, London, UK, 1998. 26. Tarasoff v Regents of the University of California [1976] P 551 2d 334 (Cal. Sup. Ct. 1976). 27. W v Egdell [1990] Ch. 359 ; [1990] 1 All ER 835 . 28. National Justice Compania Naviera SA v Prudential Assurance Co. Ltd. (“The Ikarian Reefer”); (The Times, March 5, 1993); [1993] 2 Lloyd’s Rep. 68 (High Court 1993); [1995] 1 Lloyd’s Rep. 455 (CA 1995). 29. Expert Witness Institute. Newsletter. EWI, London, UK, 1998. 30. Whitehouse v Jordan [1981] 1WLR 246, 256 per Lord Wilberforce. 31. Polivitte Ltd v Commercial Union Assurance Co. [1987] plc 1 Lloyd’s Rep. 379, 386 per Garland J. 32. Derby & Co. Ltd. and Others v Weldon and Others (No. 9) The Times, November 9, 1990 per Staughton LJ. 33. Expert Witness Institute. 34. Civil Procedure Rules. The Stationery Office, London, 1999; and on the Department of Constitutional Affairs (formerly Lord Chancellor’s Department). Available at Website: (www.dca.gov/uk). 35. Re N [1999] Lloyds Law Reports (Medical) 257; [1999] EWCA Civ 1452.

Sexual Assualt Examination

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Chapter 3

Sexual Assault Examination Deborah Rogers and Mary Newton 1. INTRODUCTION Sexual assaults create significant health and legislative problems for every society. All health professionals who have the potential to encounter victims of sexual assaults should have some understanding of the acute and chronic health problems that may ensue from an assault. However, the primary clinical forensic assessment of complainants and suspects of sexual assault should only be conducted by doctors and nurses who have acquired specialist knowledge, skills, and attitudes during theoretical and practical training. There are many types of sexual assault, only some of which involve penetration of a body cavity. This chapter encourages the practitioner to undertake an evidence-based forensic medical examination and to consider the nature of the allegation, persistence data, and any available intelligence. The chapter commences by addressing the basic principles of the medical examination for both complainants and suspects of sexual assault. Although the first concern of the forensic practitioner is always the medical care of the patient, thereafter the retrieval and preservation of forensic evidence is paramount because this material may be critical for the elimination of a suspect, identification of the assailant, and the prosecution of the case. Thus, it is imperative that all forensic practitioners understand the basic principles of the forensic analysis. Thereafter, the text is divided into sections covering the relevant body areas and fluids. Each body cavity section commences with information regardFrom: Clinical Forensic Medicine: A Physician’s Guide, 2nd Edition Edited by: M. M. Stark © Humana Press Inc., Totowa, NJ 61

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ing the range and frequency of normal sexual practices and the relevant anatomy, development, and physiology. This specialist knowledge is mandatory for the reliable documentation and interpretation of any medical findings. The practical aspects—which samples to obtain, how to obtain them, and the clinical details required by the forensic scientist—are then addressed, because this takes priority over the clinical forensic assessment. The medical findings in cases of sexual assault should always be addressed in the context of the injuries and other medical problems associated with consensual sexual practices. Therefore, each section summarizes the information that is available in the literature regarding the noninfectious medical complications of consensual sexual practices and possible nonsexual explanations for the findings. The type, site, and frequency of the injuries described in association with sexual assaults that relate to each body area are then discussed. Unfortunately, space does not allow for a critical appraisal of all the chronic medical findings purported to be associated with child sexual abuse, and the reader should refer to more substantive texts and review papers for this information (1–3). Throughout all the stages of the clinical forensic assessment, the forensic practitioner must avoid partisanship while remaining sensitive to the immense psychological and physical trauma that a complainant may have incurred. Although presented at the end of the chapter, the continuing care of the complainant is essentially an ongoing process throughout and beyond the primary clinical forensic assessment.

2. BASIC PRINCIPLES OF THE MEDICAL EXAMINATION 2.1. Immediate Care The first health care professional to encounter the patient must give urgent attention to any immediate medical needs that are apparent, e.g., substance overdose, head injury, or serious wounds. This care takes precedence over any forensic concerns. Nonetheless, it may be possible to have a health care worker retain any clothing or sanitary wear that is removed from a complainant until this can be handed to someone with specialist knowledge of forensic packaging.

2.2. Timing of the Examination Although in general terms the clinical forensic assessment should occur as soon as possible, reference to the persistence data given under the relevant sections will help the forensic practitioner determine whether the examination of a complainant should be conducted during out-of-office hours or deferred


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until the next day. Even when the nature of the assault suggests there is unlikely to be any forensic evidence, the timing of the examination should be influenced by the speed with which clinical signs, such as reddening, will fade.

2.3. Place of the Examination Specially designed facilities used exclusively for the examination of complainants of sexual offenses are available in many countries. The complainant may wish to have a friend or relative present for all or part of the examination, and this wish should be accommodated. Suspects are usually examined in the medical room of the police station and may wish to have a legal representative present. During the examinations of both complainants and suspects, the local ethical guidance regarding the conduct of intimate examinations should be followed (4).

2.4. Consent Informed consent must be sought for each stage of the clinical forensic assessment, including the use of any specialist techniques or equipment (e.g., colposcope) and obtaining the relevant forensic samples. When obtaining this consent, the patient and/or parent should be advised that the practitioner is unable to guarantee confidentiality of the material gleaned during the medical examination because a judge or other presiding court officer can rule that the practitioner should breach medical confidentiality. If photo documentation is to form part of the medical examination, the patient should be advised in advance of the means of storage and its potential uses (see Subheading 2.8.); specific written consent should then be sought for this procedure. The patient must be advised that he or she can stop the examination at any time.

2.5. Details of the Allegation If the complainant has already provided the details of the allegation to another professional, for example, a police officer, it is not necessary for him or her to repeat the details to the forensic practitioner. Indeed, Hicks (5) notes that attempts to obtain too detailed a history of the incident from the complainant may jeopardize the case at trial because at the time of the medical examination the patient may be disturbed and, consequently, the details of the incident may be confused and conflict subsequent statements. The details of the allegation can be provided to the forensic practitioner by the third party and then clarified, if necessary, with the complainant. It may be difficult for the complainant to describe oral and anal penetrative sexual assaults, and the forensic practitioner may need to ask direct questions regarding these acts sensitively (6).

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2.6. Medical and Sexual History The purpose of obtaining the medical and sexual history is essentially twofold: first, to identify any behavior or medical conditions that may cause the doctor to misinterpret the clinical findings, for example, menstrual bleeding; and second, to identify any medical problems that may be attributable to the sexual assault, for example, bleeding, pain, or discharge. Other specific details may be required if emergency contraception is being considered. When children are examined, the parent or caregiver should provide comprehensive details of the past medical history. When adults are examined, only relevant medical and sexual history should be sought because confidentiality cannot be guaranteed. What constitutes relevant medical history must be determined on a case-by-case basis by considering the differential causes for any medical findings and the persistence data for the different sexual acts. Forensic practitioners should not ask suspects about the alleged incident or their sexual history.

2.7. Nature of the Examination 2.7.1. General Examination In all cases, a complete general medical examination should be conducted to document injuries and to note any disease that may affect the interpretation of the medical findings.

2.7.2. Anogenital Examination Whenever there is a clear account of the alleged incident, the anogenital examination should be tailored to the individual case (e.g., if an adult complainant only describes being made to perform fellatio, there is usually no indication to examine the external genitalia). However, in some cases, the complainant may not be aware of the nature of the sexual assault. Furthermore, children and some adults may not have the language skills or may feel unable to provide a detailed account of the sexual acts at the initial interview. In such cases, a comprehensive anogenital examination should be undertaken if the patient or the person with legal authority to consent on behalf of the patient gives his or her consent.

2.8. Ownership and Handling of Photo Documentation Any video or photographic material should be retained as part of the practitioner’s confidential medical notes and stored in a locked cabinet a locked premises. To preserve anonymity, the material should be labeled both on the


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casing and within the video/photograph itself (by holding a card within the frame) using either a unique identification code or the patient’s initials and the date of the examination. With the specific consent of the patient, the video/ photograph can be shown to other colleagues for second opinions, viewed by a named doctor providing expert testimony for the defense, and used for teaching purposes. The material should not be released to nonmedical parties except on the directions of the court.

3. BASIC PRINCIPLES OF THE FORENSIC ANALYSIS The scientific examination at the forensic laboratory can provide information regarding: • What sexual acts have occurred. • The gender and possible identification of the assailant. • Potential links with any other offenses.

3.1. Prevention of Contamination To ensure that there is no accidental transfer of body fluids or fibers between the parties who have been involved in a sexual act, each complainant and each suspect should be transported in separate vehicles and examined in different locations by different forensic practitioners. Because of the sensitivity of the techniques used to extract and analyze DNA, forensic practitioners should take all possible steps to ensure that their own cellular material does not contaminate the samples they obtain. Therefore, gloves must be worn throughout the forensic examination and changed when sampling different body areas. Some jurisdictions require that all used gloves should be retained and exhibited. In addition, the forensic physician should avoid talking, coughing, or sneezing over unsealed samples and should handle all samples as little as possible. If a doctor believes that there is a possibility that he or she will cough or sneeze over an unsheathed swab, a face mask should be worn when the sample is being obtained.

3.2. Collection of Forensic Samples The swabs and containers used to collect forensic evidence differ from those used in clinical tests. The swabs should be made of fibers that readily release absorbed material (7). The quality and integrity of any swab or container used to obtain a forensic sample must be ensured. The provision of sealed, standardized clinical forensic examination kits or modules ensures that these requirements can be guaranteed (8,9).

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Forensic swabs should be placed in plastic sheaths that do not contain transport media or in specially designed boxes that allow the swabs to air-dry. Blood and urine samples for drug and alcohol analysis should be placed in containers with a preservative that prevents decomposition and fermentation (e.g., sodium fluoride), and the container for the blood sample should also contain an anticoagulant (e.g., potassium oxalate). The blood sample for DNA analysis and, where still applicable, conventional grouping, should be placed in a container with the appropriate preservative (e.g., ethylene diaminetetraacetic acid). Because many of the samples are subsequently frozen, all the containers should be shatterproof. Only sealed, disposable instruments (e.g., proctoscopes, specula, scissors, and forceps) should be used to retrieve forensic samples. All instruments used in the sampling process should be retained. However, if storage space is restricted, then any used proctoscopes or specula may be swabbed and only the swabs retained for later forensic sampling. Sterile water may be used to moisten the proctoscope/speculum to facilitate its insertion into a body orifice. Other lubricants should not be used when body fluid analysis or lubricant identification may be pertinent to the case (see Heading 11 on Lubricants).

3.3. Controls An unopened swab from each batch should be retained and sent with the samples as a control for that batch of swabs. If any water is used in the sampling process, the remaining water in the ampule or an unused swab moistened with some of the water should be retained as a control sample for the water.

3.4. Packaging and Continuity Any retrieved items must be packaged quickly and efficiently to prevent accidental loss of material and minimize decomposition of the sample. The use of bags with integral tamper-evident seals is recommended to prove that the sample has not been contaminated with exogenous substances since it was sealed. The exhibit should be labeled with the site of the sample, the date and time (24-h clock) it was obtained, and the name of the examinee. Again, the use of bags with integral labels will prevent accidental detachment of this vital information (see Fig. 1). Each exhibit is also labeled with an exhibit identification code, usually formed by the forensic practitioner’s initials and a number reflecting the order in which the samples were obtained. The latter is particularly important when more than one sample has been obtained from the same site (7). Every exhibit should be signed by the person who first handled


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Fig. 1. Exhibit bag with integral label and tamper-evident seal.

the sample and by the person who sealed the package (this may be the same person). It is good practice for others who subsequently handle the exhibit to sign the label also, so that, if necessary, they can be called to court to explain their part in collection, transport, and storage (10).

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The clothing worn by the complainant during or after the incident may be an invaluable source of information in terms of the nature of the assault (e.g., damage to clothing and body fluid stains) and the identification of the assailant. Even stains on clothing that has been washed have been found to contain sufficient spermatozoa to produce a DNA profile (11). Clothing should be placed in bags made of material, such as paper, that prevents the accumulation of condensation, which could accelerate decomposition of body fluids. Submitted clothing should be sealed and labeled as described previously. When the clothing is overtly wet or possibly contaminated with accelerants, the forensic science laboratory should be asked for advice on packaging and storage. The following additional information should then be recorded on the appropriate label: • • • •

Which items were worn during the offense. Which items were removed and not replaced. Which items were removed and replaced. Which new items were worn after the offense.

The forensic scientist must be provided with salient information regarding the incident and subsequent actions of the complainant in order to determine the type of forensic analysis required. A useful means of transmitting this information is via a pro forma (see Fig. 2).

3.5. Analysis Identification microscopy (e.g., spermatozoa), comparison microscopy (e.g., hairs and fibers), serological analyses (e.g., conventional ABO grouping or species identification), and biochemical analyses (e.g., phosphoglucomutase) have played a fundamental role in the investigation of crime for many years and are still used today in some circumstances. However, discovery of the specificity of an individual’s DNA profile has considerably enhanced the information that can be provided by a forensic science service for connecting a person to an offense and linking offenses to each other. Although a detailed consideration of current DNA techniques is beyond the scope of this chapter, a general understanding of the terms and techniques will benefit the forensic practitioner. Except for identical twins, each person’s nuclear DNA is unique. An individual’s gender and DNA profile may be obtained from any of his or her body fluids or tissues (e.g., blood, semen, and bones). The current technical process employed for DNA profiling is termed short tandem repeat (STR) analysis. STR loci are a class of polymorphic markers consisting of simple repeated sequences of 1–6 base pairs in length. STRs are present throughout the human genome (DNA), occurring, on average, every 6–10 kb along the


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Fig. 2. Proforma used to relay relevant information to forensic scientist. (Reproduced with permission of the members of the Joint Working Party [A.C.P.O., A.P.S., F.S.S., and M.P.S.] for the design of an examination kit for sexual offenses).

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DNA and may exhibit a high degree of length variation resulting from differences in the number of repeat units displayed by individuals. Their abundance and hypervariability make them ideal markers for the identification of an individual. When a DNA STR analysis is performed, the specific areas of interest on the molecule are initially targeted. Multiple copies of these areas are then produced using polymerase chain reaction (PCR) techniques, which amplify minute amounts of DNA. The DNA pieces are then sorted according to their size, producing the individual’s DNA STR profile (12). DNA STR analysis, including a DNA sex test (13), is now part of the routine forensic assessment of biological samples in Europe and is replacing both traditional serological analysis of blood groups and classical singleand multi-locus DNA fingerprinting (12). The formation of the European DNA Profiling Group has led to standardization of DNA analysis procedures used in the European community and associated western European countries. The current standard system focuses on analysis of 10 STR loci and is known as AMPflSTR® SGMPlus™. This system contains all of the Interpol and European Networks Forensic Science International (ENFSI)recommended European loci, which provides points of comparison for DNA intelligence purposes outside of the United Kingdom (14–21). When DNA profiling was first applied to forensic science, large amounts of nucleated material were required. However, the use of PCR technology has enabled much smaller amounts of material to be analyzed. Furthermore, when there are only small amounts of DNA, a technique termed low copy number (LCN) may be used to obtain an STR profile. LCN is a handcrafted, highly sensitive extension of the AMPflSTR® SGMPlus™ that has led to an increase in the sample types suitable for DNA testing, which, in turn, can provide valuable intelligence to the police (22). Because DNA is physically much more resistant to degradation than proteins, it is even possible to analyze degraded samples (23). Fluorescence in situ hybridization (FISH) is a new technology that uses a Y-specific DNA probe to label male epithelial cells. Once identified, the cells may be separated from the rest of the sample and submitted for DNA profiling. Without separation, the profile may be dominated by the DNA from the examinee, making it difficult to interpret. As yet, it is unclear how useful this tool will be in the forensic setting (see Subheadings 5.1.2.3. and 8.5.2.2.). Mitochondrial DNA analysis has been used in forensic casework. This technique examines the DNA contained within mitochondria and obviates the need for nuclear material. Because mitochondrial DNA is only passed from mother to child (unlike nuclear DNA, there is no contribution from the father), all the descendants along the maternal line will have the same mito-


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chondrial DNA. The technique is best suited to discrete samples, such as hairs without roots and fecal material, and is not ideal for mixtures of body fluids, particularly when the complainant’s body fluid is likely to be present in larger quantities than that of the assailant (Tully, G., personal communication, 1998). Therefore, in sexual offenses, the selection of material to be analyzed by this technique is limited and its use needs careful consideration. The forensic science laboratory must be notified when it is alleged that people who are closely related have been involved in a sexual offense, because their profiles will have greater similarity than profiles from individuals picked at random, and further differentiating tests may need to be performed.

4. SKIN The comments in this section refer to nongenital skin. For genital and perianal skin, see Headings 8–10.

4.1. Forensic Evidence 4.1.1. Method of Sampling All areas of unwashed skin that have been licked, kissed, sucked, bitten, or ejaculated on by either the assailant or the complainant must be sampled. Cellular material, amenable to DNA profiling techniques, has also been identified where there has been skin-to-skin contact (e.g., manual strangulation or gripping the arm) ([24] and Burgess, Z., personal communication, 2001). Therefore, when dealing with an assault conducted by an unknown assailant, consideration should be given to sampling marks or injuries on the skin that the complainant attributes to direct contact by the offender. However, the problem with this type of sampling is there is considerable lack of understanding about issues of transfer and persistence (24). Consequently, speculative skin swabbing in the absence of visible marks or injuries is not recommended. Although several techniques, including the use of surgical gauze pads (25) and cigarette papers (26), have been employed to recover saliva and other trace evidence from the skin with variable success, the use of sterile swabs is the most widely used technique that has received international endorsement (27). If the skin appears moist, the stain should be retrieved on dry swabs, which are then placed in sheaths without transport medium. The double-swab technique, described by Sweet et al., is the recommended method to recover dried stains or possible cellular material from skin (28). When using this technique, sterile water is used to wet completely the cotton tip of the first swab. The tip of the swab is then rolled over the area of skin using circular motions while rotating the swab on its long axis to ensure maximum contact between

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the skin and the swab. Then, a second dry swab is rolled over the same area to absorb the water left on the skin by the initial swab and collect any remaining cells. Minimal pressure should be applied to prevent exfoliation of the patient’s own epithelial cells. The forensic practitioner should use as many swabs as necessary to remove any visible stain (repeating wet swab followed by dry swab). If no stain is visible, two swabs will suffice (the first wet; the second dry). The swabs are then placed in sheaths without transport medium. Some authors comment that ultraviolet (UV) light causes fluorescence of semen and saliva and advocate its use in determining the areas of skin to be swabbed (29,30). This advice must be interpreted cautiously, because a study by Santucci and colleagues found that although many creams and ointments fluoresced when exposed to a Wood’s lamp (wavelength 360 nm), none of the 28 semen samples examined did (31). In addition, other authors have commented that detergents, lubricants (particularly those that contain petroleum jelly), and milk also fluoresce (32). However, when semen stains are exposed to a high-intensity light source of variable wavelengths (e.g., the Polilight®) and viewed using goggles to block the strong excitation light, then semen may be detectable, even when the background surface is fluorescent (33). Furthermore, the location of the stain may be recorded using photography. A recent experiment by Marshall and colleagues found that semen from a single donor could be detected on skin using several excitation wavelengths (emitted by a Poliray®) and emission filter combinations (34). Optimal results were obtained using 415 nm ± 40 nm band-pass filter and a 475 high-pass and 505 band-pass ± 40 nm interference filter. More research must be conducted using semen from multiple donors and isolating semen from other fluorescing contaminants, such as oils. Furthermore, Nelson and Santucci have recently described training forensic physicians to use an alternative light source (the Bluemaxx BM500) to identify semen (100% sensitivity) and to differentiate it from other products (35).

4.1.2. Forensic Analysis The most common reason for forensic analysis of skin swabs is after licking, kissing, or biting of the skin. Forensic analysis for other body fluids or exogenous substances is considered elsewhere in the chapter.

4.1.2.1. Detection of Saliva The only means of confirming the presence of saliva on the skin is by detecting the enzyme amylase. However, in practice, this enzyme is not usually found in high enough concentrations in samples removed from the skin (Austin, C., personal communication, 2002).


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4.1.2.2. Identification of the Assailant The preferred method for the forensic assessment of a possible saliva sample is the use of DNA STR analysis. Although it may be possible to determine the ABO-secretor status of the sample submitted, the test is only relevant if the saliva originates from one of the 80% of the population who secrete their ABO blood group in their body fluids.

4.1.3. Persistence Data There is only limited information available regarding the persistence of body fluids and cellular material on the skin of the living. A DNA STR profile matching the assailant has been obtained from a swab of unwashed facial skin 6 hours after an assault where it was alleged that the assailant salivated over the complainant’s skin (Austin, C., personal communication, 2002). Rutty studied the transference and survivability of human DNA after simulated manual strangulation. Although this study found that when using the LCN technique DNA was recoverable from either the victim’s neck or the offender’s fingers for at least 10 days after the contact, the author stressed that this apparent persistence may have resulted from secondary or tertiary transfer from other individuals or objects (the study subjects worked in the same building and shared the same bathroom and kitchen facilities during the period of the study) (24). Sweet and colleagues have shown that it is possible to obtain a DNA profile from saliva stains (corresponding to a bite mark) on cadaver skin when the saliva was deposited up to 48 hours earlier (Austin, C., personal communication, and ref. 36). This study showed that the amount of recoverable material diminished with time; hence, it is prudent to sample the relevant body areas as soon as possible after the offense.

4.2. Medical Evidence On average, 40% of complainants of sexual assaults will have no general injuries (37–41). Of those who are injured, most will have only minor injuries, which will fade rapidly or heal without a trace (37,38). Nonetheless, the whole body must be thoroughly inspected for stains (e.g., dirt and blood), injuries (including signs of substance use), skin disease, and scars (including self-inflicted injuries). All injuries must be described using the recognized nomenclature described in Chapter 4 and recorded in terms of site (measured, if possible, from a fixed bony point), two-dimensional size, covering surface (e.g., scabbing, bleeding, or swelling), and color. The body surfaces should then be palpated and a note made of the site and approximate size of any tender areas. More credence will be given to a finding of

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tenderness if it is verified later in the consultation (ideally while the patient is distracted) or at a follow-up assessment, particularly if a bruise becomes apparent. All negative observations should also be recorded. If the person can identify an injury that he or she believes was caused by a true bite, as opposed to a suction or “love-bite,” or if the examination reveals an injury that has features that are suggestive of a bite, arrangements must be made for the area to be professionally photographed so that the injury can be considered by a forensic odontologist. Several studies have reported that the female breasts are bitten in 7–19% of sexual offenses (42,43). Preprinted body diagrams are useful for recording injuries. Although the original diagram is part of the forensic practitioner’s contemporaneous record, copies may be appended to the statement or to the forms sent to the forensic scientist. The latter may use the diagrams to direct the forensic assessment (e.g., if the patient was bitten, the scientist will refer to the diagram to determine where to commence the search for saliva on any clothing that may have been contaminated concurrently).

5. HAIR: HEAD AND PUBIC 5.1. Forensic Evidence Hair is most commonly sampled to detect body fluids or retrieve foreign hairs or particles. It has been known for many decades that numerous ingested, prescribed, and illicit drugs (e.g., barbiturates, amphetamines, opiates, cocaine, benzodiazepines, γ-hydroxy butyrate, and cannabis) are deposited in the hair (44). Although toxicology of hair was originally used to detect drugs that had been repeatedly ingested, recent advances in analytical techniques have meant that toxicology may be useful after single-dose ingestion as would occur in a substance-facilitated sexual assault (45,46). This is particularly pertinent because complainants of possible drug-facilitated sexual assaults frequently do not report the incident expeditiously because of amnesia and/or doubt about what might have happened, and drugs may be accessible to analysis for longer periods in hair compared to blood or urine (47). In addition, it may be used as a reference sample for DNA analysis.

5.1.1. Method of Sampling 5.1.1.1. Cutting Hairs should be sampled by cutting if they appear to be contaminated by material that has the potential to have forensic significance (e.g., semen). If the patient does not consent to having the contaminated hairs cut or if it is not practical to cut them because of the extent of foreign material contamination,


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then the relevant areas can be swabbed (follow method of sampling given under Subheading 4.1.1.). For drug analysis, approx 50 hairs should be cut close to the scalp at least 7 days after the substance-facilitated sexual assault (48). The ideal site for sampling is the crown of the head, although this may not be acceptable to the complainant. The hairs must be kept in line, with the cut end demarcated by a rubber band. The sampled hairs are then wrapped in aluminum foil.

5.1.1.2. Combing Any foreign particles or hairs identified on the head or pubic hair should be collected with forceps and submitted for analysis. It is no longer considered necessary to comb the head hair routinely, because these samples are infrequently examined by forensic scientists (Lewington, F., personal communication, 1994) or are rarely pivotal to the case (49,50). However, if a balaclava or other article was worn on the head during the assault, the hair should be sampled with lowadhesive tape, which is then attached to acetate (51). Pubic hairs may be transferred between individuals during sexual intercourse. Exline et al. (52) studied volunteer heterosexual couples who combed their pubic hairs immediately after sexual intercourse in the “missionary” position. Even under such optimal collection conditions, pubic hair transfers were only observed 17.3% of the time using macroscopic and microscopic comparisons. Pubic hair transfer to males (23.6%) was more common than transfer to females (10.9%). Some studies on sexual offense case material have shown lower rates of pubic hair transfer between complainant and assailant. Mann (53) reported that only 4% of female complainants and no male complainants were identified as having pubic hairs consistent with the assailant hairs isolated from combings of the pubic hair, and Stone (54) identified foreign pubic hairs among the pubic hair combings of 2% of the complainants studied. However, a survey of sexual offense case material submitted to laboratories throughout the United States (55) found pubic hairs that associated the complainant and the assailant in 15% of cases. Therefore, the authors advocate that the complainant’s/suspect’s pubic hairs should routinely be combed onto a piece of uncontaminated paper (A4 size), with the complainant in the semilithotomy position; the paper enclosing the comb should be folded inward and submitted for analysis. Other loose pubic hairs on the complainant that are macroscopically different from his or her own pubic hairs can be collected with sterile forceps and submitted for forensic analysis.

5.1.1.3. Reference Sample for DNA Analysis If it is not possible to obtain buccal cells or a blood sample, then one can seek the examinee’s consent to obtain 10–25 head hairs with attached roots

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(plucked individually while wearing gloves) for use as the reference sample. It is never necessary to pluck pubic hair.

5.1.2. Forensic Analysis 5.1.2.1. Chemical Analysis Chemical analysis may be relevant if the hair has been dyed or contaminated with exogenous substances, such as a lubricant or hairspray.

5.1.2.2. Comparison Microscopy Although this was the standard method of hair analysis, discrimination of hairs by microscopic means alone yields limited information in terms of assailant identification. Therefore, although retrieved foreign hairs and pubic hair combings should be saved, it is no longer necessary to obtain control samples routinely from the complainant, although they may be required from a defendant in custody. In the rare circumstance that it should become necessary to perform comparison microscopy, a control sample from the complainant can be obtained later.

5.1.2.3. DNA Analysis Because of the improved sensitivity provided by PCR techniques and the development of mitochondrial DNA analysis, stronger, more objective conclusions in terms of assailant identification can be reached from hairs both with and without roots (56). Research has recently been undertaken to determine if FISH technology could be used to identify the gender of retrieved hair. The research has demonstrated that there is a potential forensic application in sexual offense cases where microscopy cannot determine the source of the hair (57).

5.1.2.4. Drug Analysis Only specialist laboratories offer hair analysis because hair specimens are not suitable for comprehensive drug screens and the sample is quickly consumed in testing for a few drugs (58–60). It must be noted that hair cannot be tested for alcohol.

5.1.3. Persistence Data There are no data on how long after the assault foreign pubic hairs have been retrieved from a complainant. Although spermatozoa have been recovered from head hair that was washed (61), there are no detailed data regarding the persistence of spermatozoa on the hair regarding time since assault. Hair grows at a rate of 0.7–1.5 cm/30 d (48). Cutting the hair will eventually remove the section of hair where the drugs have been deposited.


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5.2. Medical Evidence Occasionally, head or pubic hairs may have been accidentally or deliberately pulled out during a sexual assault; the identification of bleeding hair follicles and/or broken hairs would support this complaint.

6. NAILS 6.1. Forensic Evidence During the course of a sexual assault, trace materials, such as skin, body fluids, hairs, fibers, and soil, can collect under the fingernails of both the complainant and the assailant. The latter deserve particular attention because digital vaginal penetration is alleged to have occurred in nearly one in five (18%) of the sexual assault cases submitted for analysis to the Forensic Science Service (FSS); frequently, this is a precursor to another penetrative act (Newton, M., personal communication, 2003). A study undertaken by Neville in a forensic laboratory found that 38% of individuals have DNA from someone other than themselves under their fingernails and several cases submitted to the FSS have produced a DNA match between the complainant and the assailant from the material recovered from the fingernails (Moore, E., and Harris, E., personal communication, 1998; Neville, S., personal communication, 2002). Therefore, fingernail samples should be obtained from the complainant if the circumstances of the offense suggest that trace material may be present; for example, if there has been a struggle or if the details of the assault are uncertain and the forensic practitioner, in observing the complainant’s hands, notices material of interest under or on the surface of the nails. They should also be considered if a fingernail broke during the offense and the broken section may be recovered from the scene. Samples should be obtained from the suspect if it is alleged that his or her hands had direct contact with the female genitalia or if he or she scratched the complainant.

6.1.1. Method of Sampling The optimal sample is clippings of the whole fingernail as these are more practical to handle. However, in some cases, the fingernails may be too short to cut or the complainant may withhold consent for the sample; complainants who cherish their well-manicured nails may find the proposal distressing, and the examiner must be sensitive to this. In such cases, scrapings of the material under the nails should be taken using a tapered stick or both sides of the fingernails should be swabbed using the double-swab technique (see Subheading 4.1.1.). When obtaining fingernail scrapings, the forensic practitioner should try not to disturb the nail bed (Clayton, T., personal communication, 2003).

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Each hand should be sampled and specimens packaged separately enclosing the stick (enveloped in a piece of folded paper), if used. On the rare occasions when a nail has broken during the incident and the broken fragment of nail is recovered, the residual nail on the relevant finger should be clipped within 24 hours to enable comparison of nail striations (62). If it is not clear which finger the broken nail came from, then it may be necessary to clip and submit all the macroscopically broken nails, as the fingernail striations are individual to a particular finger.

6.1.2. Forensic Analysis The fingernail samples may be examined microscopically for any visible staining. The nails would then be swabbed to remove any possible body fluids and the material submitted for DNA analysis.

6.1.3. Persistence Lederer reported recovery of DNA matching the complainant from a suspect’s fingernails 2 days after the alleged digital penetration occurred; the suspect denied any form of contact and claimed to have washed his hands several times during the elapsed period (63).

6.2. Medical Examination The length and any damage to fingernails should be noted.

7. ORAL CAVITY Although the oral cavity may be injured in several ways during a sexual assault, the specific sexual acts that may result in forensic or medical evidence are fellatio, cunnilingus, and anilingus.

7.1. Fellatio 7.1.1. Definition Fellatio (also referred to as irrumation) is a sexual activity in which the penis is placed in the mouth; sexual stimulation is achieved by sucking on the penis while it moves in and out of the oral cavity. Ejaculation may or may not occur.


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7.1.2. Frequency 7.1.2.1. Consensual Fellatio is part of the sexual repertoire of heterosexual and male homosexual couples. A study of 1025 women attending a genitourinary clinic found that 55% practiced fellatio occasionally and 15% practiced fellatio often (64).

7.1.2.2. Nonconsensual Fellatio is not an infrequent component of a sexual assault sometimes occurring in isolation but occurring more frequently in conjunction with other sexual acts (6). Among the 1507 (1403 females, 104 males) sexual assault cases submitted to the Metropolitan Police Laboratory, London, during 1988 and 1989, 17% of the females and 14% of the males described performing fellatio and 31% of the males had fellatio performed on them during the sexual assault (65).

7.1.3. Legal Implications The legal definitions of many jurisdictions, including England and Wales, consider nonconsensual fellatio to be analogous to nonconsensual penile penetration of the vagina and anus (66,67).

7.1.4. Forensic Evidence 7.1.4.1. Method of Sampling 1. After oral–penile contact, the oral cavity should be sampled when fellatio was performed during the sexual assault or in circumstances in which the details of the incident are unknown. There is no current worldwide consensus as to which is the best sampling method. Possible techniques include saliva collection (ideally 10 mL), application of swabs, gauze pads (68), or filter paper (69), and oral rinses using 10 mL of distilled water (Newman, J., personal communication, 1998). Willott and Crosse (70) reported that spermatozoa are found more often in the saliva sample compared with mouth swabs, but also highlight several cases in which spermatozoa were recovered from swabs taken from specific areas of the oral cavity (e.g., under the tongue, the roof of the mouth, and the lips). Although no studies have investigated the order in which the samples should be taken, the authors’ practice is to obtain 10 mL of saliva as the first sample. Then two swabs in sequence are rubbed over the inner and outer gum margins (with particular attention to the margins around the teeth); over the hard and, where tolerated, soft palate; on the inside of the cheeks and lips; and over both

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surfaces of the tongue. The mouth is then rinsed with 10 mL of sterile water, which is retained in a bottle as the final sample. The samples can be obtained by a police officer or other attending professional before the arrival of the forensic practitioner, minimizing any delay. Spermatozoa have also been recovered from dentures and other fixtures that have remained in situ during fellatio. Although the optimum exhibit for the forensic scientist would be the dental fixture itself but, understandably, this may not be acceptable to the complainant. A compromise would be to swab the dental fixture. Interestingly, sufficient spermatozoa for a DNA profile have also been recovered using standard extraction techniques from chewing gum that was retained in the mouth during nonconsensual fellatio (68). In this case, the gauze pad obtained at the scene of the incident and the oral swabs obtained subsequently during the medical were negative. 2. DNA reference sample: Buccal cells are the preferred DNA reference sample from both suspect and complainant. The buccal cells are obtained by firmly rubbing a special swab over the inside of the cheek. 3. Determination of the secretor status: A sample of saliva is used as the reference sample for the secretor status. This sample is no longer a requirement in the United Kingdom.

7.1.4.2. Forensic Analysis After actual or possible oral ejaculation, the sample is initially examined microscopically to identify spermatozoa (see Subheading 8.5.2.1.) followed by DNA analysis.

7.1.4.3. Persistence Data Rapid retrieval of the forensic samples from the oral cavity is of paramount importance because of the limited period that spermatozoa remain in this orifice. Even though the maximum persistence of spermatozoa in the oral cavity is recorded as 28–31 hours, only a few spermatozoa are detected unless the sample is taken within a few hours of ejaculation (71). Consequently, the forensic exhibits must be collected as soon as an allegation of nonconsensual fellatio is made, and law enforcement agencies should be instructed accordingly. In the United Kingdom, an early evidence kit is available for use by the first response police officer; this is particularly beneficial in cases where there may be a time delay before a medical examination can occur. Although rinsing of the mouth, drinking, and brushing of teeth do not necessarily remove all traces of spermatozoa (72), such activities should be discouraged until the samples have been obtained. Spermatozoa have also been recovered from toothbrushes used by complainants to cleanse the mouth after fellatio (forensic scientists, personal communication, 1998). The use of interdental toothbrushes may enhance the retrieval of spermatozoa from the inter-


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dental spaces, and research in this area is currently underway in the United Kingdom. In acts of fellatio, it is common for the semen to be spat or vomited onto clothing where it will remain until washed. Therefore, any potentially contaminated clothing or scene samples should be submitted for forensic examination.

7.1.5. Medical Evidence Because a significant proportion of the population performs consensual fellatio, anecdotal accounts from oral surgeons suggest that palatal lesions consequent to such acts are rarely identified during routine casework, although this may be a result of the rapid resolution of the injuries. Nevertheless, several case reports have documented palatal lesions after fellatio. Areas of petechial hemorrhage and confluent bruising have been described on the soft palate and at the junction between the hard and soft palates after consensual fellatio (73–75). These areas of bruising vary from discrete single or bilateral lesions of 1.0–1.5 cm in diameter, located on or either side of the midline (74), to larger bands of bruising that cross the midline (73,75). The bruises are painless and resolve in 7–10 days (73,74), although they may reappear with repeated fellatio (74). A forensic practitioner may be asked to explain to the court why these bruises occur. Although the precise mechanism is unknown, the following hypotheses have been proffered: 1. Repeated contraction of the palatal muscles: As the penis touches the palatal mucosa, the gag reflex is activated, with resultant contraction of the soft palate and other constrictor muscles of the pharynx. It is suggested that the combination of retching and repeated palatal movements causes rupture of the blood vessels in the highly vascular palatal mucosa (73). 2. Sucking: Sucking on the penis produces a negative intraoral pressure, which is postulated to cause rupture of the blood vessels in the palatal mucosa. This theory is supported by the anecdotal accounts of oral surgeons who found petechial hemorrhages on the palates of children who “made a habit of forceful sucking into a drinking glass” (74). 3. Blunt trauma: Case reports describe palatal bruises subsequent to sexual assaults wherein a digit or digits have been forced into the mouth (76). However, there is no specific evidence to support the hypothesis that direct blunt trauma from a penis can cause palatal bruising.

Erythema and an erosion of the hard palate have also been described after fellatio (74,75), but the reliability of such findings is questionable. Indeed, in one such case, the mucositis was eventually diagnosed as oral candidiasis contracted from direct contact with an infected penis (75).

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Other nonsexual causes for similar palatal lesions include infectious mononucleosis; local trauma (e.g., hard food stuffs or ill-fitting dentures); paroxysms of vomiting, coughing, or sneezing; playing a wind instrument; tumors; and bleeding diatheses (77). Therefore, whenever palatal bruising, erythema, or erosions are identified during the examination of a complainant who may have been subjected to fellatio, alternative explanations should be excluded by taking a detailed medical, dental, and social history; conducting a comprehensive general examination; and, where necessary, undertaking relevant special investigations. Whenever a complaint of nonconsensual fellatio is made, the head and face must be carefully examined because there may be other injuries around the oral cavity that support the allegation, such as bruises on the face and neck or lacerations of the frenula (78).

7.2. Cunnilingus and Anilingus 7.2.1. Definitions Cunnilingus (cunnilinctus) is the sexual activity in which the female genitalia are licked, sucked, or rubbed by the lips and/or tongue. Anilingus (analingus or “rimming”) is the sexual activity in which the anus is licked, sucked, or rubbed by the lips and/or tongue.

7.2.2. Frequency 7.2.2.1. Consensual Interviews with 18,876 individuals (44% male) aged 16–59 years in the United Kingdom revealed that 66–72% had experienced cunnilingus (79). Although it is not known how many heterosexual and homosexual couples engage in consensual anilingus, 15% of the women questioned in one study acknowledged erotic feelings with anal stimulation, which, for the majority, included anilingus (80).

7.2.2.2. Nonconsensual Cunnilingus is alleged to have occurred in only 3–9% of reported sexual assaults (6,81). There are no published reports regarding the number of incidents involving anilingus; anecdotal case material suggests that it is rare.

7.2.3. Legal Implications In some jurisdictions, penetration of the vagina or anus with the tongue during nonconsensual cunnilingus or anilingus is considered to be legally analogous to nonconsensual penile penetration of the vagina and anus (South Caro-


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lina and Rhode Island) (66,67). The British Parliament has recently created a new offense of “assault by penetration,” which is defined as nonconsensual penetration of the anus or genitalia by an object or a body part. This new offense attracts the same maximum penalty as rape.

7.2.4. Forensic Evidence 7.2.4.1. Method of Sampling See Headings 8 and 10 for more detailed information.

7.2.4.2. Forensic Analysis and Persistence Data Traditionally, the detection of the enzyme amylase on vulval and vaginal swabs was considered confirmatory evidence of the presence of saliva. However, in 1992, a study conducted at the Metropolitan Police Laboratory, London, using vaginal swabs from volunteer female donors who had not participated in cunnilingus revealed high levels of endogenous amylase (82). Furthermore, amylase has been specifically isolated from cervical mucus (83). Therefore, the FSS in London no longer routinely tests for amylase in such cases. Instead, DNA analysis is undertaken on the vulval and/or vaginal swabs. If the assailant’s DNA profile is obtained, it can be used to support an allegation of cunnilingus, although, obviously, the precise interpretation will depend on whether the complainant was subjected to other sexual acts that could account for the presence of the DNA (e.g., ejaculation). There are no published persistence data regarding the maximum time it is possible to obtain the assailant’s DNA pattern from the female genitalia after cunnilingus/anilingus. There are no published data regarding the possibility of obtaining the complainant’s DNA STR profile from a swab or saliva sample taken from the assailant’s oral cavity or lips after an allegation of cunnilingus or anilingus. Correspondence with numerous forensic biologists has not revealed any cases in which this has been undertaken, and the general consensus among these experts is that it is unlikely that such samples would isolate sufficient material for forensic analysis because of the usual time delay between the sexual act and the obtaining of the samples from the suspect and the limited number of vaginal cells that are likely to be present. Indeed, this presumption appears to be supported by the work of Banaschak et al. (84), who found mixed DNA STR patterns in five samples obtained from five couples who had kissed for 2 minutes. However, in all cases, the kissing partner’s DNA STR pattern was only identifiable in the samples immediately after kissing (maximum 60 seconds), and no mixed DNA STR patterns were identified when the volunteers were retested at 5 minutes.

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7.2.5. Medical Evidence Repeated thrusting of the tongue over the edges of the mandibular incisors during cunnilingus or anilingus may cause ulceration of the lingual frenulum, which completely heals within 7 days (85). Such lesions should be specifically sought during the examination of the suspect’s oral cavity when such an act has been described by the complainant or when the precise details of the assault are unknown.

8. FEMALE GENITALIA 8.1. Frequency Penile–vaginal intercourse is the most common sexual act performed between heterosexuals. A UK survey of the sexual practices of 10,492 females aged between 16 and 59 years found that only 5.7% of them had never experienced heterosexual penile–vaginal intercourse (86). A more recent survey of sexual attitudes and lifestyles undertaken between 1999 and 2001 found that 30% of the men and 26% of the women reported first heterosexual intercourse before the legal age of consent (16 years in the United Kingdom) (87).

8.2. Legal Implications Although in English law the legal definition of “rape” relates to nonconsensual penile penetration of the mouth, anus, or vagina, a new offense of assault by penetration has been recently created to cover nonconsensual penetration of the anus or the genitalia by an object or a body part; this new offense has the same maximum sentence as rape. In Scotland, nonconsensual penile–vaginal penetration is defined by common law as “carnal knowledge of a female by a male against her will” (88). Other jurisdictions, such as some American states, define all penetrative acts as sexual assaults subcategorized by the degree of force and coercion used. In many jurisdictions, the legal interpretation of “vaginal penetration” refers to penetration of the labia and does not require that the penis actually enter the vagina (89). The age at which a female can legally give consent for penile–vaginal intercourse varies from country to country; for example, in England, the age of consent is 16 years, whereas in California, it is 18 years (90).

8.3. Anatomy The external female genitalia (vulva) includes the mons pubis, the labia majora, the labia minora, the clitoris, and the vestibule (which incorporates the openings of the urethra and the vagina).


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The hymen is the tissue that partially or completely surrounds the opening of the vagina. It appears that all females have hymenal tissue present at birth (91). The hymen may be annular (encircling the vaginal opening), crescentic (present at the lateral and posterior margins), fimbriated (frilly edged), or, usually after childbirth, present only as interrupted tags or remnants. It is important that the reader refer to atlases that illustrate these variations (2,92). There is usually a single opening in the hymen. Uncommon congenital variants include two or more hymenal openings, referred to as septate or cribriform, respectively, and, rarely, complete absence of an opening (imperforate hymen). Indentations or splits in the hymenal rim have been variously described as deficits, concavities, transections, clefts, notches, and, when clearly of recent origin, tears or lacerations (fresh and healed). In this text, the term notch will be used to describe divisions or splits in the hymenal rim. Superficial notches have been defined as notches that are less than or equal to half the width of the hymenal rim at the location of the notch, and deep notches have been defined as notches that are more than half the width of the hymenal rim at the location of the notch (93). Superficial notches of all aspects of the hymen have been described in both prepubertal (0–8 years) and postpubertal females (9.5–28 years) who have no history of sexual activity (93– 96). Notches ranging from 0.5 mm to 3 mm in depth were noted in the ventral half of the hymens of 35% of newborns examined by Berenson; this study does not subcategorize the notches as superficial or deep. Deep notches of the anterior and lateral aspects of the hymen have been found in 14 of 200 postpubertal females (9.5–28 years) who denied having sexual activity (96). Deep notches of the posterior hymenal margin have not been described in prepubertal females screened for abuse. Deep notches of the hymenal margin have been described among postpubertal females who deny having sexual activity, although because these females were not screened for abuse, it is not possible to state whether these were the result of unreported sexual abuse. The other pertinent anatomic landmarks in this area are the posterior fourchette (where the labia minora unite posteriorly), the fossa navicularis (a relatively concave area of the vestibule bounded anteriorly by the vaginal opening, posteriorly by the posterior fourchette, and laterally by the labia minora), and the anterior fourchette (where the labia minora meet anteriorly and form the clitoral hood). The skin of the labia majora and the outer aspects of the labia minora is keratinized squamous epithelium, but only the outer aspects of the labia majora are hair bearing. The skin of the inner aspects of the labia minora and the vestibule (including the hymen) is nonkeratinized. This area is usually pink, but in

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the nonestrogenized child, it may appear red because the skin is thinner and consequently the blood vessels beneath its surface are more apparent (97). The forensically relevant areas of the internal female genitalia are the vagina and the cervix. The pertinent landmarks are the vaginal fornices (anterior, posterior, right, and left) and the cervical os (opening of the cervical canal). The vagina and cervix are covered by nonkeratinized squamous epithelium that normally appears pink in the estrogenized female. Occasionally, the columnar endocervical epithelium, which appears red, may be visible around the cervical os because of physiological or iatrogenic (e.g., exogenous estrogens) eversion of the endocervical canal; these are sometimes erroneously referred to as cervical erosions.

8.4. Development The female hypothalamic–pituitary–gonadal axis is developed at the time of birth. During the first 5 days of life, the level of gonadotrophin-releasing hormone (GnRH) rises, with a consequent transient rise in gonadal estrogen, attributable to the withdrawal of placental estrogen (98). The estrogen causes prominence of the labia and clitoris and thickening and redundancy of the hymen. The neonatal vagina is purported to measure 4 cm in length (97). Although after 3 months the GnRH levels gradually fall, the estrogenized appearance of the genitalia may persist for the first 2–4 years of life (99,100). During this period, the external genitalia gradually become less prominent; eventually, the hymen becomes thin and translucent and the tissues appear atrophic; occasionally, the hymen remains thick and fimbriated throughout childhood. The nonestrogenized vagina has relatively few rugae and lengthens by only 0.5–1.0 cm in early childhood (97,98). The hypothalamic–pituitary–gonadal axis is reactivated in late childhood, and the breasts and external genitalia alter accordingly. These changes are classically described in terms of their Tanner stage (101). Under the influence of estrogens, the vagina lengthens to 7.0–8.5 cm in late childhood, eventually reaching its adult length of 10–12 cm (97,98). The estrogenized vagina is moist because of physiological secretions. This endogenous lubrication is enhanced with ovulation and with sexual stimulation (102). When the endogenous estrogen levels fall resulting from menopause, the vulva and vagina atrophy.

8.5. Forensic Evidence Although legally it is not necessary to have evidence of ejaculation to prove that vaginal intercourse has occurred, forensic science laboratories are frequently requested to determine whether semen is present on the swabs taken


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from the female genitalia because semen evidence can play a central role in identification of the assailant. The female genitalia should also be sampled if a condom was used during the sexual act (see Heading 11) and if cunnilingus is alleged to have occurred (see Heading 7). It is also important to sample the vagina, vulva, and perineum separately when only anal intercourse is alleged to exclude the possibility of leakage from the vagina to account for semen in the anal canal (see Heading 10).

8.5.1. Method of Sampling The scientist is able to provide objective evidence in terms of the quantity (determined crudely) and quality of the spermatozoa present and may be asked to interpret the results in the context of the case. When providing expert evidence regarding whether vaginal penetration has occurred, the scientist must be able to rely on the forensic practitioner to obtain the samples in a manner that will refute any later suggestions by the defense that significant quantities of spermatozoa, which were only deposited on the outside of the vulva, could have been accidentally transferred to the high vaginal area during the medical examination (7). It is worth noting that there has been no research to support or refute this hypothesis. Currently, there is no internationally agreed method for obtaining the samples from the female genital area. The following method has (October 2003) been formulated by experienced forensic practitioners and forensic scientists in England to maximize the recovery of spermatozoa while considering these potential problems: 1. Any external (sanitary napkins or pads) or internal (tampons) sanitary wear is collected and submitted for analysis with a note about whether the item was in place during the sexual act and whether other sanitary wear has been in place but discarded since the incident. 2. Two swabs are then used sequentially to sample the vulva (i.e., the inner aspects of labia majora, the labia minora, and the vestibule). Particular attention must be paid to sampling the interlabial folds. Even though traditionally these swabs have been labeled “external vaginal swab,” they should be labeled as “vulval swab” to clearly indicate the site of sampling. Moist stains should be recovered on dry swabs. However, if the vulval area or any visible staining appears dry, the double-swab technique should be used (28) (see Subheading 4.1.1.). 3. The labia are then separated, and two sequential dry swabs are used to comprehensively sample the lower vagina. These are labeled “low vaginal swabs.” 4. An appropriately sized transparent speculum is then gently passed approximately two-thirds of the way into the vagina; the speculum is opened, and any foreign bodies (e.g., tampons or condoms) are removed and submitted for analysis. Then,

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two dry swabs are used to comprehensively sample the vagina beyond the end of the speculum (particularly the posterior fornix where any fluid may collect). These are labeled “high vaginal swabs.” 5. When relevant (see Subheading 8.5.3.), a single endocervical sample is then obtained. At this point, the speculum may be manipulated within the vagina to locate the cervix.

The best practice is to use only sterile water to lubricate the speculum, because research has shown that swabs contaminated by some lubricants yield significantly less DNA, and lubricants may have been used in the incident (Newton, M., personal communication, 2003). If doctors decide for clinical reasons to use a lubricant, then they should take care to apply the lubricant (from a single use sachet or tube) sparingly and must note its use on the forms returned to the forensic scientist. In the process of sampling the vagina, the speculum may accumulate body fluids and trace evidence. Therefore, the used speculum should be retained, packaged separately, and stored in accordance with local policy. If the speculum is visibly wet on removal, swabbing may be undertaken to retrieve visible material. If storage space is restricted, swab the instrument and retain the swabs instead. In some centers, additional methods of semen collection are employed (5,63,103) in the form of aspiration of any pools of fluid in the high vagina and/or placing 2–10 mL of saline or sterile water in the vagina and then aspirating the vaginal washings. However, vaginal aspirates should not be necessary if dry swabs are used to sample the vagina in the manner described. Furthermore, there are no data to confirm that vaginal washings retrieve spermatozoa more effectively than vaginal swabs. In exceptional circumstances (e.g., genital injury or age of the examinee), it may not be possible to pass a speculum to obtain the “high vaginal” and endocervical swabs. On these occasions, two dry swabs should be inserted sequentially into the vagina under direct vision, avoiding contact with the vestibule and hymen. An attempt should then be made to comprehensively sample the vagina by gently rotating and moving each swab backward and forward. These swabs should be labeled “vaginal swabs”. Unfortunately, in such circumstances, it is impossible to be certain that the high vaginal swab was not contaminated from semen in the low vagina, which could be there because of drainage from external ejaculation.

8.5.2. Forensic Analysis 8.5.2.1. Spermatozoa Some guidelines recommend that the forensic practitioner perform an immediate microscopic examination of a wet mount of the material obtained


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from the vaginal fornices to identify motile spermatozoa on the basis that the presence and motility of spermatozoa may help determine whether recent vaginal ejaculation had occurred. However, a considerable body of opinion does not commend this practice (104). Forensic science laboratories have specialist extraction procedures, staining techniques, and microscopic equipment to maximize spermatozoa recovery and facilitate identification. A survey of 300 cases in which spermatozoa were eventually identified found that they were only detected in four of the cases in the native preparation (before the application of specialist stains) (105). When nonconsensual penile–vaginal penetration is alleged, the samples are examined microscopically by the forensic scientist to identify spermatozoa, and a DNA analysis is performed on any spermatozoa found.

8.5.2.2. Seminal Fluid If no spermatozoa are detected, an attempt is made to corroborate the allegation by the microscopic identification of seminal choline crystals. Seminal choline is present in high concentrations in seminal fluid, and the choline crystals can be precipitated by the addition of reagents (106). There are also electrophoretic techniques by which seminal fluid can be identified (107). If the assailant is a secretor, his semen, regardless of whether spermatozoa are present, will contain his ABO group antigens. However, serological analysis has been superseded by DNA STR analysis in many countries. The FSS is currently researching the use of FISH technology to identify small amounts of male epithelial cells that subsequently can be isolated to enable STR DNA profiling to be conducted on the recovered material (108– 110). This will be useful where the offender is suspected to be oligospermic or aspermic or when only minimal amounts of male epithelial cells have been deposited; Y chromosome-positive cells have been isolated from vaginal swabs taken immediately after intercourse where no ejaculation had occurred.

8.5.2.3. Blood A retrospective survey carried out at the Metropolitan Police Forensic Science Laboratory (MPFSL) found that nearly one-third of the vaginal swabs received at the laboratory were blood stained (7). Whenever bleeding is noted during the medical examination, the forensic practitioner should communicate to the scientist any possible source for the bleeding. In the MPFSL study, the examining doctors believed that 22% of the blood-stained swabs were attributed to menstruation and 10% to female genital trauma. In the remaining cases, no explanation for the bleeding was given. In these cases, the presence of blood must be interpreted with caution, particularly if in small quantity,

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because traces of uterine blood may be present at any time of the cycle (7) and, currently, there is no accepted method of differentiating between traumatic or uterine blood (111). Furthermore, even traumatic bleeding may result from consensual sexual acts (see Subheading 8.6.). On rare occasions assailants injure their penises during a sexual act, and this may be the source of blood found in the vagina.

8.5.2.4. Lubricant See Heading 11 for detailed information.

8.5.3. Persistence Data Research conducted at the MPFSL has found that after vaginal intercourse, spermatozoa should be found in the vagina for 24 hours, are likely to be found up to 3 days later, and occasionally, are found 7 days later (112,113). Longer times for persistence are the exception rather than the rule. The quantity of semen in the vagina will diminish progressively with time, usually as a result of drainage. The posture and activity of the complainant subsequent to the act are likely to affect this. Similarly, washing, douching, or bathing may accelerate the loss of semen. Drainage of semen from the vagina may also result in soiling of intimate clothing items worn at the time, and these can prove valuable sources of body fluids. It has been observed that spermatozoa can be isolated for longer periods in the endocervix. Graves et al. (114) report that spermatozoa were isolated from the endocervix 17 days after intercourse. Studies that compared paired swabs from the vagina and cervix have found that 2 days or more after vaginal ejaculation there is a larger quantity of spermatozoa on endocervical swabs compared with the vaginal swabs (115). Therefore, it is recommended that if a complainant presents 48 hours or more after alleged vaginal intercourse, an endocervical swab be taken in addition to the swabs from the vagina. Although seminal choline has only been found on vaginal swabs up to 24 hours after vaginal ejaculation (116), using FISH technology, Y-chromosome-intact cells have been identified on postcoital vaginal swabs 7 days after sexual intercourse with ejaculation (117). There is interest in the possibility of determining the timing of intercourse by changes in spermatozoa. Spermatozoa may remain motile in the vagina for up to 24 hours and longer in the cervical mucosa (50,118,119), but the periods for persistence are extremely variable. For example, Rupp (120) observed that motile spermatozoa persisted longer in menstruating women but added that identification is hindered by the presence of red blood cells, and Paul (121) reported that the period of spermatozoa motility ranged


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from 1–2 hours at the end of the menstrual cycle to as long as 72 hours at the time of ovulation. However, the morphology of the spermatozoa does show more consistent temporal changes. In particular, the presence of large numbers of spermatozoa with tails is indicative of recent intercourse. The longest time after intercourse that spermatozoa with tails have been found on external vaginal swabs is 33 hours and 120 hours on internal vaginal swabs (122). A full DNA STR profile matching the assailant should be obtainable from vaginal swabs taken up to 14 hours postcoitus; partial DNA STR profiles are more likely to be obtained between 24 and 48 hours postcoitus (Elliott, K., personal communication, 2002).

8.6. Medical Evidence 8.6.1. Examination Methods The forensic practitioner should inspect the mons pubis and note the color, coarseness, and distribution (Tanner stages 1–5) of any pubic hair. A note should also be made if the pubic hair appears to have been plucked (including bleeding hair follicles), shaved, cut, or dyed. Then the vulval area must be carefully inspected before the insertion of a speculum, because even gentle traction on the posterior fourchette or fossa navicularis during a medical examination can cause a superficial laceration at these sites. Whenever possible, the vagina and cervix should be inspected via the transparent speculum after the high vaginal samples have been obtained. Colposcopy and the application of toluidine blue dye are two specialist techniques used by some forensic practitioners during female genitalia examinations.

8.6.1.1. Colposcopy A colposcope is a free-standing, binocular microscope on wheels that is most commonly used for direct visualization of the cervix (using a bivalve speculum) after the detection of abnormal cervical cytology. Many centers, particularly those in the United States, advocate the use of the colposcope for external and, where relevant, internal genital and/or anal assessments of complainants of sexual assault. The colposcope undoubtedly provides considerable advantages over gross visualization. First, it provides magnification (5–30 times) and greater illumination, enabling detection of more abnormalities. Slaughter and Brown (123) demonstrated positive colposcopic findings in 87% of female complainants of nonconsensual penile penetration within the previous 48 h, whereas gross

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visualization has historically identified positive genital findings in only 10– 40% of cases (37–39,124,125). Second, with the attachment of a still or video camera, the colposcope allows for a truly contemporaneous, permanent video/photographic record of the genital/anal findings without resorting to simultaneous dictation, which has the potential to distress the complainant. If a video is used, it will document the entire genital examination and will show any dynamic changes, such as reflex anal dilatation. If appropriate, the medical findings can be demonstrated to the complainant and carer; some teenagers have apparently appreciated the opportunity to have any fears of genital disfigurement allayed by the use of this equipment. Finally, if a remote monitor is used, the whole examination can be viewed by another doctor for corroboration or teaching purposes without additional parties having to be present during the intimate examination. This facility is obviously more pertinent when video recording is not available. Obviously, it is important that in all cases the colposcopic evidence be interpreted in the context of the limited information that is currently available regarding colposcopic assessments after consensual sexual acts (90,126,127).

8.6.1.2. Toluidine Blue Toluidine blue stains nuclei and has been used on the posterior fourchette to identify lacerations of the keratinized squamous epithelium that were not apparent on gross visualization (128,129). Use of toluidine blue increased the detection rate of posterior fourchette lacerations from 4 to 58% in adult (older than 19 years) complainants of nonconsensual vaginal intercourse, from 4 to 28% in sexually abused adolescents (11–18 years old), and from 16.5 to 33% in pediatric sexually abused patients (0–10 years old) (129,130). The same frequency of posterior fourchette lacerations has been identified by use of the stain in adolescents after consensual penile penetration and nonconsensual sexual acts (129). In contrast, adult complainants of nonconsensual vaginal intercourse and sexually abused children had significantly more lacerations demonstrable by toluidine blue staining than control groups (130), although such staining does not identify lacerations that cannot be detected using a colposcope (123). Therefore, if a colposcope is not available, toluidine blue may be an adjunct to the genital assessment of prepubertal and adult complainants of vaginal penetration (129,130). Furthermore, some centers use the stain during colposcopy to provide a clear pictorial presentation of the injuries for later presentation to juries (123). Vulval swabs for forensic analysis must be taken before the stain is applied. Toluidine blue (1%) is then painted on the posterior fourchette, using


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a swab, before any instrumentation. After a few seconds, the residual stain is removed with lubricating jelly and gauze (128). The patient may experience some stinging at the application site. The time parameters within which the use of toluidine blue is beneficial in highlighting injuries have not been identified.

8.6.2. Injuries Little information is available regarding the incidence and type of genital injuries that result from consensual sexual acts involving the female genitalia. Although penile–vaginal penetration is the most frequent sexual act performed by heterosexual couples, anecdotal reports from doctors who regularly conduct nonforensic assessments of the female genitalia (general practitioners, gynecologists, or genitourinary physicians) suggest that injuries resultant from sexual activity are rarely identified. However, this may be explained by the nature of routine assessments, which are usually limited to naked-eye inspection or because of the rapid and complete resolution of minor injuries (90). On the other hand, there are reports describing genital injuries in complainants of sexual assault, although, unfortunately, few have matched the findings with the specific complaint or the subsequent outcome in court. To date, no case-control study has compared the genital findings in complainants of sexual assault with those in a sexually active control population.

8.6.2.1. External Genitalia For penile penetration of the vagina to occur, the penis must first pass between the labia minora and through the hymenal opening. The apposition of the penis and the posterior fourchette in the majority of sexual positions means that this area may be stretched, rubbed, or receive blunt trauma as vaginal penetration is achieved. Lacerations, abrasions, or bruises at the posterior fourchette have all been described after consensual sexual activity, although in all these cases, the examinations were enhanced by the use of toluidine blue or a colposcope (90,128,129). Wilson (131) has also described macroscopically visible hematomata of the labia with consensual sexual activity. These injuries usually heal completely without residual scarring (90). Among 311 postpubertal females (age range 11–85 years) who made a “valid” (defined as “police investigation corroborated the victim’s history and the victim did not recant”) complaint of sexual assault, 200 had colposcopically detected injuries at one or more of the following sites on the external genitalia: posterior fourchette, labia minora, hymen, and fossa navicularis (90). Although all categories of injuries (“tears,” bruises, abrasions, redness, and

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swelling) were described at all sites, the predominant injuries described were site dependent; for example, tears were most frequently described on the posterior fourchette (n = 83) and fossa navicularis (n = 28), whereas abrasions were most frequently described on the labia minora (n = 66) and bruises were the most frequent injuries seen on the hymen (n = 28) (90). Adams and colleagues found similar types and distributions of injuries among the adolescent complainants (14–19 years) they examined (132). In this population, tears of the posterior fourchette or fossa navicularis were the most common findings (40%). The studies of macroscopic findings among complainants of sexual assault have also found that most of the injuries detected are located on the external genitalia (133,134). Healing of lacerations of the posterior fourchette is predominantly by first intention, with no residual scarring being detected at follow-up assessments (90). Nonetheless, scarring may occur occasionally in these areas, but it is important not to mistake a linear vestibularis, a congenital white line identified in the fossa navicularis (present in 25% of neonates), for a scar (135). Accidental injuries of the external genitalia of female children are well documented in the literature. The site and nature of the injury will depend on the type of trauma and the conformation of any object involved (136,137).

8.6.2.2. Hymen The hymen must be examined in detail after an allegation of a nonconsensual penetrative act. When the hymen is fimbriated, this assessment may be facilitated by the gentle use of a moistened swab to visualize the hymenal edges. When the hymenal opening cannot be seen at all, application of a few drops of warm sterile water or saline onto the hymen will often reveal the hymenal edges. Foley catheters are also a useful tool to aid hymenal visualization in postpubertal females (138). A small catheter is inserted through the hymenal opening, the balloon is then inflated with 10–20 mL of air, and the catheter is gently withdrawn so that the inflated balloon abuts the hymen. The balloon is deflated before removal. This procedure is well tolerated by the examinee. Obviously, in the acute setting, none of these maneuvers should be attempted until the relevant forensic samples have been retrieved. There is little specific information available regarding the type and frequency of acute hymenal injuries after consensual sexual acts, particularly regarding the first act of sexual intercourse. Slaughter et al. (90) conducted colposcopic examinations of the genitalia of 75 women who had experienced “consensual” vaginal intercourse in the preceding 24 hours. They found lacerations (tears) with associated bruising at the 3-o’clock and 9-o’clock positions on the hymen of a 14-year-old and bruises at the 6-o’clock and 7-o’clock


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positions on the hymens of two other females (aged 13 and 33 years). No other hymenal injuries were detected. Unfortunately, no details regarding previous sexual experience are recorded on their pro forma. In the same article, the hymen was noted to be one of the four most commonly injured genital sites among 311 postpubertal complainants of nonconsensual sexual acts. The hymenal injuries detected colposcopically were bruises (n = 28), lacerations (n = 22), abrasions (n = 13), swelling (n = 10), and redness (n = 4). The hymenal lacerations were either single (n = 12), nine of which were at the 6-o’clock position, or paired around the 6-o’clock position (n = 10). The authors found that hymenal lacerations were four times more common in the younger age groups. Again, there was no information regarding previous sexual experience. Bowyer and Dalton (133) described three women with hymenal lacerations (detected with the naked eye) among 83 complainants of rape who were examined within 11 days of the incident; two of the three women had not previously experienced sexual intercourse. One retrospective survey of the acute injuries noted among adolescent complainants of sexual assault (aged 14–19 years) found that hymenal tears were uncommon, even among the subgroup that denied previous sexual activity (132). Bruises, abrasions, reddening, and swelling completely disappear within a few days or weeks of the trauma (90,139). Conversely, complete hymenal lacerations do not reunite and thus will always remain apparent as partial or complete transections (123), although they may be partially concealed by the effects of estrogenization (140). However, lacerations that do not extend through both mucosal surfaces may heal completely (2). There is one case report of a 5-year-old who was subjected to penile penetration and acquired an imperforate hymen resulting from obliterative scarring (141). On the basis of the current literature, complete transections in the lower margin of the hymen are considered to provide confirmatory evidence of previous penetration of the hymen. However, it is not possible to determine whether it was a penis, finger, or other object that caused the injury, and there is an urgent need for comprehensive research to determine whether sporting activities or tampon use can affect hymenal configuration. Although partial or complete transections of the upper hymen may represent healed partial or complete lacerations beyond the acute stage, there is no method of distinguishing them from naturally occurring anatomical variations. Goodyear and Laidlaw (142) conclude that, “it is unlikely that a normallooking hymen that is less than 10 mm in diameter, even in the case of an elastic hymen, has previously accommodated full penetration of an adult finger, let alone a penis.” However, there is no objective evidence on which to base this conjecture, and it is not known whether measuring the hymenal open-

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ing using a digit, or other previously measured object, in the clinical setting when the practitioner is particularly anxious not to cause the patient any distress accurately reflects what the hymen could have accommodated during a sexual assault. On the other hand, it is now generally accepted that postpubertal females can experience penile vaginal penetration without sustaining any hymenal deficits; this is attributed to hymenal elasticity (142,143). Furthermore, the similarity between the dimensions of the hymenal opening among sexually active and nonsexually active postpubertal females (96) makes it impossible for the physician to state categorically that a person has ever had prior sexual intercourse unless there is other supportive evidence (pregnancy, spermatozoa on a high vaginal swab; see Subheading 8.5.; Forensic Evidence) (96,142,144).

8.6.2.3. Vagina Lacerations and ruptures (full-thickness lacerations) of the vagina have been described in the medical literature after consensual sexual acts (145– 147). They are most commonly located in the right fornix or extending across the posterior fornix; this configuration is attributed to the normal vaginal asymmetry whereby the cervix lies toward the left fornix, causing the penis to enter the right fornix during vaginal penetration (147). Factors that predispose to such injuries include previous vaginal surgery, pregnancy, and the puerperium, postmenopause, intoxication of the female, first act of sexual intercourse, and congenital genital abnormalities (e.g., septate vagina) (145). Although most vaginal lacerations are associated with penile penetration, they have also been documented after brachiovaginal intercourse (“fisting”) (147), vaginal instrumentation during the process of a medical assessment (147), and the use of plastic tampon inserters (148). Vaginal lacerations have been documented without any direct intravaginal trauma after a fall or a sudden increase of intra-abdominal pressure (e.g., lifting a heavy object) (147). Injuries of the vagina have been noted during the examinations of complainants of sexual assault. Slaughter et al. (90) describe 26 colposcopically detected vaginal injuries among the 213 complainants who had genital trauma identified. These were described as “tears” (n = 10), bruises (n = 12), and abrasions (n = 4). Other articles that considered only macroscopically detectable lesions found vaginal “injuries” in 2–16% of complainants of nonconsensual penile vaginal penetration (133,134). However, one study included “redness” as a vaginal injury when, in fact, this is a nonspecific finding with numerous causes.


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When a vaginal laceration may have been caused by an object that has the potential to fragment or splinter, a careful search should be made for foreign bodies in the wound (145) (this may necessitate a general anesthetic), and X-rays should be taken of the pelvis (anteroposterior and lateral), including the vagina, to help localize foreign particles (149). Any retrieved foreign bodies should be appropriately packaged and submitted for forensic analysis.

8.6.2.4. Cervix Bruises and lacerations of the cervix have been described as infrequent findings after nonconsensual sexual acts (90,150,151). In one article, the injuries related to penetration by a digit and by a “knife-like” object. There are no reports of cervical trauma after consensual sexual acts.

8.6.2.5. Nonspecific Norvell et al. (126) have also documented areas of increased vascularity/ telangiectasia (n = 7), broken blood vessels (n = 2), and microabrasions (n = 2) during colposcopic assessment of the introitus, hymen, and lower 2 cm of the vagina of 18 volunteers who had participated in consensual sexual activity within the preceding 6 hours. However, the areas of increased vascularity may have been normal variants (90), and the precise location of the other findings was not described. Fraser et al. (152) describe the macroscopic and colposcopic variations in epithelial surface of the vagina and cervix in healthy, sexually active women (age 18–35 years). They documented changes in the epithelial surface in 56 (17.8%) of the 314 inspections undertaken; six were located at the introitus, 26 in the middle or lower thirds of the vagina, eight on the fornical surfaces of the cervix, 14 in the vaginal fornices, and two involved generalized changes of the vaginal wall. The most common condition noted was petechiae. The more significant conditions noted were three microulcerations, two bruises, five abrasions, and one mucosal tear. The incidence of these conditions was highest when the inspections followed intercourse in the previous 24 hours or tampon use.

9. MALE GENITALIA During examination of the male genitalia, the forensic practitioner is expected to document any features that could assist with subsequent identification of the assailant, to note any acquired or congenital conditions that could make an alleged sexual act impossible, to describe in detail any injuries that could relate to a sexual act, and to retrieve any forensic evidence. Although the specifics of the medicolegal assessment of the male genitalia are case dependent, the principles of the examination, whether of the complainant or the defendant, are the same.

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9.1. Anatomy and Physiology 9.1.1. Penile Size Forensic practitioners may be asked to provide evidence on the size of a defendant’s penis in the flaccid state to support a hypothesis that a certain sexual act could not have occurred because of intergenital disproportion between the complainant and the defendant. However, such measurements are unhelpful because it is not possible to predict the maximum erectile size from the flaccid length, and there is “no statistical support for the ‘phallic fallacy’ that the larger penis increases in size with full erection to a significantly greater degree than does the smaller penis” (153). Furthermore, even when the erect penis is measured during automanipulation or active coition, the measurements are recognized to be unreliable (153).

9.1.2. Erections Forensic practitioners may also be asked to comment on a person’s ability to achieve a penile erection, particularly if the male is young or elderly. Masters and Johnson (153) note that during their research, “penile erection has been observed in males of all ages ranging from baby boys immediately after delivery to men in their late eighties;” they report that one 89-year-old study subject was able to achieve a full penile erection and ejaculate. Therefore, it is not possible to reach a conclusion regarding erectile efficiency based on age alone. When a defendant reports erectile dysfunction, the expert opinion of a urologist should be sought. Penile erection may result from visual stimulation (including fantasy) or tactile stimulation. The penis, scrotum, and rectum are all sensitive to tactile stimulation (153), which may explain why involuntary penile erections can be experienced by a male subjected to nonconsensual anal intercourse.

9.1.3. Semen Production Semen is not produced until the male experiences puberty, which usually begins between 9 and 14 years of age (154). Semen consists of seminal fluid (produced by the prostate) and spermatozoa. The normal volume of a single ejaculate is between 2 and 7 mL, and it will contain approx 50–120 million spermatozoa/mL. There are numerous congenital and acquired causes for impaired spermatogenesis (155), resulting in either decreased numbers (oligozoospermia) or absence of (azoospermia) spermatozoa. Both conditions may be permanent or transitory depending on the underlying cause. Permanent azoospermia (e.g., after a successful vasectomy) would be of particular forensic significance because it could lead to the elimination of a


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suspect from an inquiry if spermatozoa had been identified that were known to relate to the offense. It is not possible to determine whether spermatozoa are present in the ejaculate without microscopic assessment. However, analysis of a defendant’s semen is not a routine part of the forensic assessment.

9.2. Forensic Evidence After an allegation of fellatio, swabs from the complainant’s penis can be examined for saliva, but, as discussed earlier in Subheading 7.2.4.2., the likelihood of definitive identification of saliva by amylase estimation is low. Nonetheless, enough material may be obtained for DNA analysis. When an allegation of vaginal or anal intercourse is made, penile swabs from the suspect can be examined for cells, feces, hairs, fibers, blood, and lubricants. It should be noted that vaginal fluid from recent previous intercourse, unrelated to the allegation, may be detected by DNA analysis of swabs taken from the unwashed penis (Harris, E., personal communication, 1998).

9.2.1. Sampling Method Data collected by the MPFSL between 1987 and 1995 (122) have shown that after vaginal intercourse, cellular material from the complainant can be recovered from the coronal sulcus (groove around the penis just below the glans) even if the suspect has washed or bathed since the offense. Swabs taken from the meatus and urethra are not suitable for microscopic assessment because some male urethral cells can be similar to vaginal cells (7). Therefore, when vaginal intercourse is alleged, two swabs (the first wet, the second dry) should be obtained sequentially from the coronal sulcus, and two additional swabs (the first wet, the second dry) should be taken sequentially from the glans and the shaft together. The swabs must be labeled accordingly, and the order in which the samples were obtained must be relayed to the scientist. The same samples are also taken if it is believed that a lubricant or condom has been used during a sexual act or if the assault involved fellatio or anal intercourse.

9.2.2. Forensic Analysis 9.2.2.1. Microscopic and Biochemical Analyses Such analyses of the penile swabs may be undertaken to identify cellular material, blood, or amylase. When the complaint is of anal intercourse, swabs that are discolored by fecal material can be analyzed for urobilinogen and examined microscopically for vegetable matter.

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9.2.2.2. Assailant Identification DNA STR profiling of body fluids on the penis is now the method of choice used to provide evidence of penile–vaginal/oral/anal contact. It has proved particularly useful when multiple assailants have had intercourse with a single complainant (forensic scientists, personal communication, 1998), because DNA STR profiles matching the other assailants may also be found on the penile swabs taken from one assailant. Certain forensic science laboratories are now able to extract mitochondrial DNA from the degraded cellular material present in feces, although the value of this method of analysis in relation to sexual offenses must be considered in relation to the other sexual acts that are alleged to have occurred during the assault.

9.2.3. Persistence Data Female DNA profiles have been obtained on penile swabs up to 24 hours postcoitus (156). Blood and feces have been recovered from penile swabs taken 15 and 18 hours, respectively, after the incident (for saliva, see Subheading 7.1. and ref. 7).

9.3. Medical Evidence When obtaining the relevant forensic samples, the forensic practitioner should inspect the male genitalia with particular reference to the following points: 1. Pubic hair should be described in terms of its coarseness, distribution (Tanner stages 1–5), and color. A note should be made if the pubic hair appears to have been plucked (including bleeding hair follicles), shaved, cut, or dyed. 2. Congenital abnormalities, such as microphallus and cryptorchidism. Penile length in the flaccid state is said to vary from 8.5 to 10.5 cm (measured from the anterior border of the symphysis along the dorsal surface to the distal tip of the penis), with a documented range of 6–14 cm (153). 3. Acquired abnormalities, such as circumcision, Peyronie’s disease, balanitis xerotica obliterans, vasectomy scars, phimosis, tattoos, and piercing. 4. Signs of infection, such as warts, discharge, erythema, and vesicles. 5. Foreign bodies may be worn around the base of the penis, sometimes also encircling the scrotum, in an attempt to increase and sustain penile tumescence. Such devices may result in local and distal genital trauma (penile tourniquet syndrome) (157). In several case reports, children have had human hairs wrapped around the penis; these hairs may be virtually invisible because of edema or epithelialization (158). Kerry and Chapman (159) have described the deliberate application of such a ligature by parents who were attempting to prevent enuresis.


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6. Assessment of injuries. After consensual sexual intercourse, lacerations of the foreskin and frenulum, meatitis, traumatic urethritis, penile edema, traumatic lymphangitis, paraphimosis, and penile “fractures” have all been described (160– 163). Accidental trauma is more common when there is a pre-existing abnormality, such as phimosis (160). Skin injury may be incurred if the genitals are deliberately bitten during fellatio (160). Although the precise incidence of male genital trauma after sexual activity is unknown, anecdotal accounts suggest that it is rare to find any genital injuries when examining suspects of serious sexual assaults (164).

In children the genitalia may be accidentally or deliberately injured, and the latter may be associated with sexual abuse (165). Bruises, abrasions, lacerations, swelling, and burns of the genitalia of prepubescent males have all been described (165,166).

10. PERIANAL AREA AND ANAL CANAL 10.1. Definitions Buggery is a lay term used to refer to penile penetration of the anus (anal intercourse) of a man, a woman, or an animal (also known as bestiality). Sodomy relates to anal intercourse between humans only.

10.2. Frequency 10.2.1. Consensual Although anal intercourse among heterosexuals is the least common component of the sexual repertoire, it has been experienced on at least one occasion by 13–25% of heterosexual females surveyed (64,80,167), and it was described as a regular means of sexual gratification for 8% of women attending one gynecologist (80). Among 508 men who reported having had a samegender sexual experience at some stage in their lives, 33.7% reported insertive anal intercourse, and 35.4% had experienced receptive anal intercourse. Interestingly, in contrast to a common perception, more men had experienced both practices than had been in exclusively receptive or insertive roles (168).

10.2.2. Nonconsensual Anal intercourse was reported by 5–16% of females who described having been sexually assaulted (6,169). Although it may be the only sexual act performed, it is more frequently combined with vaginal and oral penetration (6,169). Fewer data are available regarding sexual assaults on males, although Hillman et al. (170,171) report that penetrative anal intercourse was described by 75–89% of the male complainants they studied.

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10.3. Legal Implications Under English common law, the term buggery is defined as anal intercourse by a man with another man or a woman and anal or vaginal intercourse by a man or a woman with an animal (bestiality). Although the 1967 Sexual Offences Act provided that it was not an offense for two consenting men who had attained the age of 21 to commit buggery in private, it remained an offense for a man to commit buggery with a woman, even if both parties consented, until 1994. The Criminal Justice and Public Order Act 1994 expanded the definition of rape, which had previously related to only vaginal intercourse, to include nonconsensual penile penetration of the anus independent of the gender of the recipient. The Sexual Offences (Amendment) Act 2000 reduced the minimum age at which a person, whether male or female, may lawfully consent to buggery to 16 years. A recent change in English law has defined nonconsensual penetration of the anus by an object or a body part (excluding the penis) as “assault by penetration,” this new offense has the same maximum sentence as rape. In some other jurisdictions, such as Australia, such acts are included in the legal definition of rape (172).

10.4. Anatomy and Physiology An understanding of the normal anatomy and physiology of the perianal area and anal canal is important for the reliable description and interpretation of the medical findings after allegations of anal penetrative acts. Unfortunately, varying definitions have resulted in considerable confusion, such that there is no consensus among forensic practitioners about the nomenclature that should be used in describing injuries to this area. Therefore, a brief overview of the relevant information is given in the remaining Subheadings, together with references to more substantive texts.

10.4.1. Anus The anus refers not to an actual anatomical structure but to the external opening of the anal canal. The skin that immediately surrounds the anus is variously referred to as the anal verge or anal margin (173). Because the anal canal can evert and invert as the anal sphincters and pelvic floor muscles relax and contract, the anal verge/margin is not a fixed, identifiable landmark.

10.4.2. Perianal Area The perianal area is a poorly defined, approximately circular area that includes the folds of skin encircling the anus. It is covered by skin that is often


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hyperpigmented when compared with the skin on the buttocks, although this varies with age and ethnicity (174).

10.4.3. Anal Canal Although the anal canal has been variously defined, the definition that has practical clinical forensic value is that of the anatomical anal canal, which extends from the anus to the dentate line. The dentate line refers to the line formed either by the bases of the anal columns (most distinct in children) or, when these are not apparent, by the lowest visible anal sinuses (175). The average length of the anatomical anal canal in adults (age range 18–90 years) is only 2.1 cm, with a range of 1.4–3.8 cm in males and 1.0–3.2 cm in females (176). Between the epithelial zones of the anal canal and the rectum is the anal transitional zone, which is usually located in the region of the anal columns and is purple (177). The anal canal, as previously defined, is lined by nonkeratinized squamous epithelium and is salmon pink in the living (174). It is sensitive to touch, pain, heat, and cold to just above the dentate line (175). The anus and lumen of the anal canal usually appear as an asymmetric Y-shaped slit when viewed via a proctoscope (anoscope). The folds of mucosa and subcutaneous tissue (containing small convulated blood vessels surrounded by connective tissue) between the indentations of the Y are referred to as the anal cushions. Although this appearance is usually obscured externally by the folds of skin on the perianal area, it may become apparent if the patient is anesthetized or as the anus dilates.

10.4.4. Rectum The rectum extends from the anal transitionary zone to the sigmoid colon and is 8–15 cm long. It is lined by typical intestinal mucosa and is red in the living. The rectum has only poorly defined dull sensation (175).

10.4.5. Anal Sphincters and Fecal Incontinence Although numerous muscles encircle the anal canal, the two that are forensically significant are the internal and the external anal sphincters.

10.4.5.1. Internal Anal Sphincter This sphincter is a continuation of the circular muscle coat of the rectum and extends 8–12 mm below the dentate line. In the normal living subject, the internal anal sphincter is tonically contracted so that the anal canal is closed. The internal sphincter is supplied by autonomic nerve fibers and is not considered to be under voluntary control (3). Thus, although it appears to contract

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during a digital assessment of voluntary anal contraction, it is presumed to result from its compression by the surrounding external sphincter fibers (177).

10.4.5.2. External Anal Sphincter This sphincter encircles the internal sphincter but extends below it, ending subcutaneously. The lower edges of the external and internal sphincters can be distinguished on digital palpation. Although this sphincter is tonically contracted in the resting state, this contraction can be overcome with firm pressure (177). If the patient is asked to contract the anus during a digital assessment, the external sphincter can be felt to ensure contraction and closing of the anus tightly. However, because the muscle fibers are predominantly the slow-twitch type, a maximum contraction of the external sphincter can only be maintained for approx 1 minute(178). Fecal continence is maintained by several factors, the relative importance of which has not been fully elucidated. Currently, the most important factor is the angulation between the rectum and the anal canal, which is maintained at a mean of 92° by continuous contraction of the puborectalis muscles, located above the external sphincter. Both sphincters have supportive roles in maintaining fecal continence (175), and their disruption can result in incontinence (see Subheading 10.6.2.).

10.5. Forensic Evidence The presence of semen in the anus or rectum of a male complainant can be corroborative evidence of alleged anal intercourse in conjunction with the presented history and possible physical findings. The same is only true for a female complainant if no semen is detected in the vagina, because semen has been found on rectal and anal swabs taken from women who described vaginal intercourse only. It is postulated that the presence of semen in these cases results from vaginal drainage (49,179). Swabs should also be taken if a condom or lubricant was used during the sexual assault and if anilingus is alleged (see Subheading 7.2. and Heading 11).

10.5.1. Method of Sampling Two samples must first be obtained from the perianal area. Just as when sampling the skin elsewhere, if the perianal skin is moist, the stain should be retrieved on dry swabs. If there is no visible staining or the stain is dry, the double-swab technique should be used (28). The forensic practitioner should use as many swabs as are necessary to remove any visible stain (repeating moistened swab followed by dry swab). If no stain is visible, two swabs will suffice (the first wet, the second dry). Although not specifically defined for forensic pur-


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poses, the perianal area should be considered as an area with a radius of 3 cm from the anus. The swabs are then placed in sheaths without transport medium. Even though traditionally these swabs have been labeled “external anal swab,” they should be labeled as “perianal swab” to clearly indicate the site of sampling. The anal canal is then sampled by passing a wet swab and then a dry swab, sequentially, up to 3 cm through the anus. The proctoscope (anoscope) is then passed 2–3 cm into the anal canal, and the lower rectum is sampled using a dry swab. As the proctoscope is withdrawn, the anal canal can be sampled, again with a dry swab. As discussed previously, when examining female complainants of anal intercourse alone, swabs should also be obtained from the vagina. The best practice is to use only sterile water to lubricate the proctoscope, because research has shown that swabs that are contaminated by some lubricants yield significantly less DNA, and lubricants may have been used in the incident (Newton, M., personal communication, 2003). In practice, this presents major difficulties. If doctors decide for clinical reasons to use a lubricant, they should apply the lubricant (from a single-use sachet or tube) sparingly, taking care not to contaminate the swabs, and must note its use on the forms returned to the forensic scientist. In the process of sampling the rectum/anal canal, the proctoscope may accumulate body fluids and trace evidence. Therefore, the used proctoscope should be retained, packaged separately, and stored in accordance with local policy. If the proctoscope is visibly wet on removal, swabbing may be conducted to retrieve visible material. If storage space is restricted, then the instrument should be swabbed and the swabs retained instead. Stool samples and toilet paper need not be collected routinely because the other samples described should be adequate for laboratory requirements.

10.5.2. Forensic Analysis Microscopic examination for spermatozoa (or analysis for seminal choline if no spermatozoa are present) is initially undertaken, followed by DNA analysis if any body fluids are identified. ABO grouping is not successful with anal swabs because the complainant’s own group predominates (180). Lubricant and saliva analysis are discussed in Heading 11 and Subheading 7.2., respectively.

10.5.3. Persistence Data Under normal circumstances, the maximum recorded interval between the act of anal intercourse and the identification of spermatozoa on a rectal swab is 65 hours (181). However, in one exceptional case in which a female remained prone in the hospital for several days because of injuries sustained

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during a sexual assault, semen was detected on anal swabs taken 113 hours after the act of anal intercourse (181). Swabs should be taken even if the complainant has defecated since the assault. An unpublished review of 36 MPFSL cases of alleged anal intercourse in which the complainant had defecated before the examination found that in six cases (four female and two male) the internal/external anal swabs were still positive for spermatozoa, although only a few were present; one of these subjects, a male, had a positive external anal swab 52 hours after the anal intercourse (Allard, J., personal communication, 1998). Anal swabs have produced a positive DNA STR analysis up to 48 hours after the incident (Elliott, K., personal communication, 2003).

10.6. Medical Evidence When an allegation of anal penetration is made, the perianal skin, anal canal mucosa, and, when tolerated, the lower portion of the rectum should be examined with the aid of a proctoscope/anoscope. This can be done simultaneously with the retrieval of the forensic evidence. It is generally accepted that with gradual dilatation and lubrication, consensual penile anal intercourse can be performed without any resultant injury (80,182). Furthermore, it is important to emphasize that nonconsensual anal penetration can also occur in both children and adults without producing acute or chronic injury (3). Although anecdotal accounts have detailed the anal and rectal injuries that result from consensual penile/object anal penetration (121,175), few peerreviewed articles have addressed this subject. Similarly, many studies have documented the presence of anal symptoms or signs among complainants of sexual assault (133,170), but few of these have described the acute injuries in any detail or related these injuries to the specific complaint and its subsequent outcome.

10.6.1. Anal Fissures, Tears, and Lacerations The most frequent injuries that are documented after allegations of nonconsensual anal penetration are anal fissures, tears, and lacerations. Use of these different terminologies is confusing and makes comparing the different data impossible. A consensus should be reached among forensic practitioners worldwide regarding what terms should be used and what they mean. Clinically, an anal fissure refers to a longitudinal laceration in the perianal skin and/or mucosa of the anal canal. Anal fissures may be acute (usually healing within 2–3 weeks) or chronic and single or multiple. Most fissures will heal by first intention and not leave a scar. However, after healing, the site of some


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fissures may be apparent as a fibrous skin tag (183). Manser (134) described the medical findings in only 16 of 51 complainants (15 males and 36 females) of anal intercourse (21 were categorized as child sexual abuse). The majority (61%) of this study population was examined at least 72 hours after the sexual contact. Fissures were found in eight cases (16%). A major problem in the forensic interpretation of anal fissures is that they may result from numerous other means that are unrelated to penetrative trauma, including passage of hard stools, diarrhea, inflammatory bowel disease, sexually transmitted diseases, and skin diseases (183,184). In the study by Manser (134), lacerations were documented as being present in only one of the 51 complainants of anal intercourse and five of 103 females complainants of nonconsensual vaginal penetration aged between 12 and 69 years, some of whom complained of concurrent nonconsensual anal penetration with either an object or a penis (the majority of whom were examined within 24 hours of the sexual assault). It may be that these “lacerations” were long or deep anal fissures, but because the parameters of length or depth of an anal fissure have not been clinically defined, the distinction may be arbitrary. Conversely, these “lacerations” may have been horizontally or obliquely directed breaches in the epithelium (185), which would immediately differentiate them from anal fissures and render them highly forensically significant because of the limited differential diagnoses of such injuries compared with fissures. Slaughter et al. (90) described the gross and colposcopic findings in 311 females aged from 11 to 85 years who reported nonconsensual sexual acts, 55 of whom described anal contact. The majority (81%) of the population was examined within 72 hours of the sexual assault. They found “anal findings” in 56% of the 55 patients who reported anal contact. The anal injuries were categorized as tears in 19 of the cases. Although elsewhere Slaughter has qualified the term “tear” to mean “laceration” (186), this was not done in this article and again means that interpretation of the forensic significance of these injuries may be limited. Because a significant percentage of the heterosexual and male homosexual population has engaged in consensual anal penetration, anecdotal accounts suggest that resultant injuries, such as fissures, are rare. This could be because the injuries do not warrant medical attention or because patients are not specifically questioned about anal intercourse when the causative factors for anal abnormalities/complaints are considered. However, one study that specifically attempted to address this issue documented that among 129 women who gave a history of anal intercourse, only one patient described anal complications, namely proctitis and an anal fissure; both these signs related to a gonococcal

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infection (80). However, because this study was limited to the medical history, it is not possible to rule out the presence of minor asymptomatic conditions or injuries in this study population. Whether an injury heals by first or secondary intention, the latter resulting in scar formation, depends on several factors, including the width and depth of the breach in the epithelium. Manser (134) reported scarring in 14% of the people examined because of possible anal intercourse. The Royal College of Physicians working party stated that in children, “The only specific indicator of abuse is a fresh laceration or healed scar extending beyond the anal margin onto the perianal skin in the absence of reasonable alternative explanation, e.g., major trauma” (173). Disappointingly, this report does not clarify how they differentiate between lacerations and fissures.

10.6.2. Anal Sphincter Tone The forensic practitioner may be asked about the effects that a single episode or repeated episodes of anal penetration have on anal sphincter tone and subsequent continence of feces. In terms of single anal penetrative acts, partial tears and complete disruptions of the anal sphincters have been described after a single traumatic sexual act (187,188); one case was caused by pliers and the others by brachioproctic intercourse (fisting). However, it is not clear from these case reports whether the sexual practices were consensual or nonconsensual. The two patients who were described as having complete disruption of the sphincters both developed fecal incontinence. There is a case report of “multiple ruptures” of the internal anal sphincter with resultant fecal incontinence after nonconsensual anal penetration with a penis and fist (189). Regarding repeated acts of anal penetration, the studies are conflicting. A study of 129 heterosexual women who gave a history of anal intercourse found no reports of “gross fecal incontinence” (64). Similarly, Chun et al. (190) found that although the 14 anoreceptive homosexual males studied had significantly lower resting anal canal pressures when compared with the control group (10 nonanoreceptive heterosexual males), there were no complaints of fecal incontinence by the study subjects. In contrast, Miles et al. (191) found a significant increase in fecal incontinence or urgency (requiring immediate defecation to avoid incontinence) in anoreceptive individuals. In addition, they found an inverse relationship between the maximum resting sphincter pressure and the estimated number of acts of anal intercourse. Not surprisingly, they also found that the more traumatic forms of anoreceptive practices, such as brachioproctic intercourse (fisting), were more likely to result in objective sphincter dysfunction. Both the Chun and Miles studies used special equipment to measure the sphincter tone, and nei-


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ther comments on whether sphincter laxity was apparent clinically in any of the subjects. Interestingly, reflex anal dilatation (that is, dilatation of the external and internal anal sphincters when the buttocks are gently separated for 30 s), which many authors have said is associated with anal intercourse, was not seen in any of the anoreceptive subjects in the Miles’ study group (191).

10.6.3. Rectal Lacerations Other, apparently rare, major complications that have been reported in adult males after penile–anal intercourse are nonperforating and, less frequently, perforating lacerations of the rectal mucosa (187,188). Mucosal lacerations are also seen in association with brachioproctic intercourse and the insertion of inanimate foreign bodies (187,188). On occasions, the injury may be fatal (187,188). Slaughter et al. (90) described five rectal lacerations among eight women who underwent proctoscopy after “anal contact” during a sexual assault. The relationship between the precise sexual act and the medical findings is not described.

10.6.4. Other Injuries The other anal injuries that have been described in complainants of anal penetration are bruises (2–4%), abrasions (4–5%), erythema (2–8%), and swelling/edema (2–6%) (90,134). Slaughter et al. (90) described a high number of rectal injuries, in addition to the lacerations described (ecchymosis, n = 1; abrasions, n = 2; redness, n = 1; and swelling, n = 6) that were detectable among eight sexual assaults complainants who described “anal contact” (90). Although bruises are indicative of blunt trauma, the other findings may have innocent explanations, for example, a superficial abrasion of the anal verge has been identified on a child who interrupted the medical to pass a motion (observation of D. Rogers). Although erythema and swelling/edema are also nonspecific findings, if they have completely resolved at a follow-up examination, it may be possible to relate them to the allegation. All these minor injuries would be expected to heal within 2 weeks of the incident without any residual scarring.

11. LUBRICANTS Traces of lubricant found on vaginal or internal anal swabs may provide confirmatory evidence of recent penetration of a body orifice. This has particular relevance if a condom is worn during a penetrative act. Consequently, if the forensic practitioner has used lubricant (other than sterile water) on specula, proctoscopes, or gloved digits, it must be communicated to the

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forensic scientist. In terms of lubricant analysis, the most frequent request received by the forensic science service is to check vaginal swabs for the presence of condom lubricant. A review of cases at the Las Vegas Metropolitan Police Department found that 19 of 80 complainants reported that either the assailant had worn a condom during the incident or they had experienced consensual intercourse with a partner wearing a condom within the 72 hours preceding the assault (Cook, Y. L., personal communication, 1993, and ref 192). The most commonly encountered lubricants applied directly to the penis to aid penetration are Vaseline® (petroleum-based product) and KY® Jelly (water-based product) (193). However, various other substances have been used to facilitate penetration during a sexual assault, including hand cream, cooking oil, and margarine, the diversity of the products apparently reflecting what is immediately at hand. Saliva is also used as a lubricant (see Heading 4 and Subheading 7.2.) (Keating, S. M., personal communication, 1992). The constituents of condom lubricant (e.g., silicon and polyethylene glycol) are also found in numerous other skin care products and suppositories. Therefore, when relevant, the forensic practitioner should ask if the complainant has applied anything to the genital/anal area in the preceding 2 days. This information should be noted on the paperwork that is made available to the forensic scientist so that scientist can source the relevant product to check what it contains. Dusting agents used on condoms may also be detected in the form of starch grains and lycopodium spores and can be used to correlate the finding of condom lubricant (Black, R., personal communication, 2002). The same dusting agents are used on some clinical gloves. Therefore, the forensic practitioner should wear nonpowdered gloves when sampling the genital and anal area (194). To maximize the possibility of lubricant detection, the necessary swabs should be obtained as soon as possible after the incident. The forensic science laboratory must then be told that lubricant analysis may be relevant, because this potentially requires scientists from more than one discipline to examine the same sample, e.g., when both body fluids and lubricant analysis are requested. If the forensic science laboratory is not made aware of this requirement, potential evidence could be inadvertently destroyed during laboratory processes. Many factors may affect the length of time that a lubricant will persist on skin or in a body orifice. Condom lubricant has been detected on a swab taken from an unwashed penis 50 hours after intercourse and, in a different case, on a vaginal swab (also when the complainant had not washed or douched) taken 24 hours after intercourse, but detection after such prolonged periods would appear to be exceptional (Black, R., personal communica-


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tion, 2002); water-based lubricants (e.g., those containing polyethylene glycol) have only been detected within 8 hours of the sexual act (193,195).

12. BLOOD AND URINE ANALYSIS 12.1. Reason for Analysis When drugs or alcohol have been consumed or possibly administered before or during a sexual assault, consideration should be given to the need to obtain samples of blood and urine for toxicological analysis. The length of time that a drug or its metabolites remain detectable in blood or urine depends on several factors, including the quantity taken, the individual’s metabolism, and the sensitivity and specificity of the analytical methods employed by the laboratory (196). Although the metabolites of some substances may be excreted for up to 168 hours in the urine (196), many are detectable for only a few hours (see Subheading 12.4. on Persistence Data). In general, drugs and their metabolites will be identifiable for longer in urine than in blood.

12.2. Method of Sampling 12.2.1. Blood It is good practice to request a sample of blood for drug/alcohol analysis when the incident has occurred in the preceding 4 days. A single sample of 10 mL of venous blood should be placed in a container with an anticoagulant (e.g., potassium oxalate) and a preservative that prevents decomposition and fermentation (e.g., sodium fluoride) for drug and alcohol analysis. If volatiles are suspected, a portion of blood must be collected into a container with an intrinsic rubber bung to enable the dead space above the blood to be analyzed.

12.2.2. Urine It is good practice to request a sample of urine for drug/alcohol analysis when the incident has occurred in the preceding 4 days. If the allegation exceeds this time limit, contact the forensic science laboratory for advice on whether a sample is required. Ideally, 20 mL of urine should be placed in a container with a preservative that prevents decomposition and fermentation (e.g., sodium fluoride), although samples in plain bottles can be analyzed. Urine should be collected as soon as practically possible. Samples from complainants do not need to be witnessed. Complainants should be advised not to dispose of any towels, panty liners, or tampons at this stage.

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Rogers and Newton Table 1 Approximate Detection Windows for Prescribed/Illicit Substances Prescribed/abused drugs Diazepam/Temazepam Methadone Flunitrazepam γ-Hydroxy butyrate Barbiturates Amphetamines Ecstasy Cocaine Heroin/morphine Cannabis—occasional user Cannabis—regular user

Blood

Urine

2d 1d 12–24 h 6h 1 or more d 12–24 h 12–24 h 12–24 h 12–24 h 0–4 h days

4d 2–3 d 3d 12 h 2 or more d 1–2 d 2–3 d 2–3 d 1–2 d 12 h weeks

From personal communications with A. Clatworthy and J. Taylor, members of the toxicology section of the Metropolitan Laboratory of Forensic Science, 2003.

12.3. Forensic Analysis Forensic science laboratories have the capability of detecting a range of prescribed and illicit substances, but the persistence of different substances or their metabolites in the blood and urine of an individual depends on numerous factors. In some circumstances, the forensic science laboratory may undertake back calculations to estimate the blood alcohol concentration of the individual at the time of the sexual assault (197). Certain information is required to assist the forensic scientist with interpretation of the toxicological results. • Sex, body weight, and build of the individual. • The time that any drugs/alcohol were consumed or believed to have been administered. Was it a single dose or more? • The exact time that the blood and urine samples were taken. • Details of any prescribed medication or other substances normally consumed by the individual, including quantity and the date and time of most recent use.

12.4. Persistence Data Table 1 provides the approximate detection windows for several prescribed/illicit substances. The detection windows depend on a few different factors, including the amount of substance used/administered and the frequency of use. Specialist advice is available for the toxicology section of the forensic laboratory.


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13. CARE OF THE COMPLAINANT 13.1. Medical Treatment The medical facilities should be stocked with the necessary provisions to enable minor injuries to be cleaned and dressed. Analgesia may be required. On rare occasions, a tetanus booster will be advisable.

13.2. Practical The examination facilities should incorporate a shower or bath for the complainant to use after the medical is complete, and a change of clothing should be available (preferably the patient’s own garments). Complainants should have access to a telephone so that they can contact friends or relatives and should be encouraged to spend the next few days in the company of someone that they trust. On occasions, emergency alternative accommodation will need to be organized.

13.3. Pregnancy Consideration must be given to the patient’s risk of becoming pregnant. Whenever any risk is identified, the patient should be counseled regarding the availability of hormonal and intrauterine methods of emergency contraception; the most suitable method will depend on the patient profile and the time since the assault (198). When patients elect for insertion of an intrauterine contraceptive, they should be given prophylactic antibiotics (see Subheading 13.4.) either in advance of or at the time of the fitting. Follow-up appointments should be made at a convenient venue where pregnancy tests are available. Should the patient become pregnant because of the assault, she must be referred for sympathetic counseling. If the pregnancy is terminated, it may be relevant to seek permission from the patient for the products of conception to be retained for DNA analysis.

13.4. Sexually Transmitted Infections Adult female complainants of sexual assault are at risk of acquiring a sexually transmitted infection (STI) as result of the assault (199,200). Some male complainants have also described STI acquisition after the sexual assault (170,171). In children who may have been sexually abused, there is a low prevalence of infections that are definitely sexually transmitted, although other organisms possibly associated with sexual activity may be identified (201). Therefore, STI testing should be offered when the history and/or physical findings suggest the possibility of oral, genital, or rectal contact.

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Some guidelines advocate STI screening for all adults at the time of presentation in recognition of the significant incidence of pre-existing STI amongst women who allege rape and a high default rate for follow-up consultations (202,203). However, disclosure in court of pre-existing STI can be detrimental to the complainant (40,204). Consequently, it may be more appropriate for the first tests to be deferred until 14 d after the assault. When interpreting the results of STI tests in young children, consideration must be given to the possibility that the sexually transmitted organisms could have been acquired perinatally (201,205,206). Some centers prescribe antibiotic prophylaxis for all complainants of penile penetrative sexual assaults at the time they present (6,207,208). The use of antibiotic prophylaxis reduces the need for repeated examinations, avoids the anxiety incurred in waiting for the results, and is acceptable to the majority of women to whom it is offered (209). Antibiotic prophylaxis should cover the prevalent, treatable organisms in the local population, and advice should be sought from the local center for disease control regarding an appropriate regimen. Hepatitis B virus (HBV) can be acquired through consensual and nonconsensual sexual activity (210). Therefore, HBV vaccine should be offered to all adult victims of sexual assault (202). In children and young people, a risk/ benefit analysis will inform the decision regarding whether the vaccine should be offered. It is not known how soon after the sexual assault the HBV vaccine needs to be given to have an effect. However, because of the long incubation period an accelerated course of the vaccine (0, 1, and 2 months or 0, 1, and 6 months) may be efficacious if is initiated within 3 weeks of the exposure (202). Human immunodeficiency virus (HIV) can be acquired through sexual activity (210). Although preventive antiretroviral treatment (postexposure prophylaxis [PEP]) is increasingly being offered to patients who may have had a sexual exposure to HIV infection, there are no studies that prove the efficacy of PEP in these circumstances (211). There are two approaches to the management of HIV PEP after a sexual assault. The first approach is to offer HIV PEP to all patients whose mucosa has been or is believed to have been exposed to the blood or semen of the assailant, regardless of the geographic location or likelihood of HIV infection in the assailant (212). The second is for a forensic/genitourinary medicine physician to undertake a risk assessment taking account of the prevalence of HIV in the area where the assault occurred, the timing and nature of the assault, and any HIV risk behaviors exhibited by the assailant (202,212). Animal studies suggest that the sooner HIV PEP is given, the greater the chance of preventing seroconversion. Therefore, it is currently recommended that HIV PEP is com-


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menced no more than 72 hours after the assault, although it still may be effective up to 14 days after exposure (202,213). Patients considering HIV PEP should be advised of the unproven efficacy, side effects, and potential toxicity of the treatment (202,211). Regardless of whether prophylaxis is given, complainants should be counseled and offered baseline serological tests for syphilis, HBV, hepatitis C, and HIV, which will be repeated at the relevant periods after assault.

13.5. Psychological Complainants of sexual assault must be offered immediate and ongoing counseling to help them cope with the recognized immediate and long-term psychological sequelae of a sexual assault (214). Some examination facilities have 24-h access to trained counselors (215).

REFERENCES 1. Bays, J., Chadwick, D. Medical diagnosis of the sexually abused child. Child Abuse Negl. 17:91–110, 1993. 2. Heger, A., Emans, S. J., Muram, D., eds. Evaluation of the Sexually Abused Child. Oxford University Press, New York, NY, 2000. 3. Royal College of Physicians. Physical Signs of Sexual Abuse in Children. RCP, London, UK, 1997. 4. General Medical Council. Intimate Examinations. GMC, London, UK, 1996. 5. Hicks, D. J. Rape: Sexual assault. Am. J. Obstet. Gynecol. 137:931––935, 1980. 6. Evrard, J. R., Gold, G. M. Epidemiology and management of sexual assault victims. Obstet. Gynecol. 53:381–387, 1979. 7. Keating, S. M., Allard, J. E. What’s in a name? Medical samples and scientific evidence in sexual assaults. Med. Sci. Law. 34:187–201, 1994. 8. Keating, S. M. The laboratory’s approach to sexual assault cases. Part 1: sources of information and acts of intercourse. J. Forensic. Sci. Soc. 28:35–47, 1988. 9. Clark, M. D. B. Metropolitan Police Laboratory Examination Kit for Sexual Offences. Police Surg. 15:447–452, 1979. 10. Ranson, D. The forensic medical examination. In: Forensic Medicine and the Law. Melbourne University Press, Victoria, Australia, pp. 119–127, 1996. 11. Kafarowski, E., Lyon, A. M., Sloan, M. M. The retention and transfer of spermatozoa in clothing by machine washing. Can. Soc. Forensic Sci. J. 29:7–11, 1996. 12. Benecke, M. DNA typing in forensic medicine and in criminal investigations: a current survey. Naturwissenschaften. 84:181–188, 1997. 13. Mannucci, A., Sullivan, K. M., Ivanov, P. L., Gill, P. Forensic application of a rapid and quantitative DNA sex test by amplification of the X–Y homologous gene amelogenin. Int. J. Leg. Med. 106:190–193, 1994. 14. Foreman, L. A., Evett, I. W. Statistical analyses to support forensic interpretation for a new ten-locus STR profiling system. Int. J. Leg. Med. 114:147–155, 2001.

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15. Gill, P. Role of short tandem repeat DNA in forensic casework in the UK—past, present and future perspectives. Biotechniques. 32:366–372, 2002. 16. Werrett, D. J. The national database. Forensic Sci. Int. 88:33–42, 1997. 17. Hoyle, R. The FBI’s national database. Biotechnology. 16:987, 1998. 18. Gill, P., Sparkes, B., Fereday, L.,Werrett, D. J. Report of the European Network of Forensic Science Institutes (ENFSI): formulation and testing of principles to evaluate STR multiplexes. Forensic Sci. Int. 108:1–29. 19. Bar, W., Brinkman, B., Budowle, B., et al. DNA recommendations. Further report of the DNA Commission of the ISFH regarding the use of short tandem repeat systems. International Society for Forensic Haemogenetics. Int. J. Leg. Med. 110:175–176, 1997. 20. Olaisen, B., Bar, W., Brinkmann, B., et al. DNA recommendations of the International Society for Forensic Genetics. Vox-Sang. 74:61–63, 1998. 21. Leriche, A., et al. Final report of the Interpol Working Party on DNA profiling. Proceedings from the 2nd Eurpoean Symposium on Human Idenitification. Promege Corporation, 48–54, 1998. 22. The Forensic Science Service. Low copy number DNA profiling. Available at Website: (http://128.1.18.1/html/corpcomm/hotnews/low.copy.htm). 23. Monckton, D. G., Jeffreys, A. J. DNA profiling. Curr. Opin. Biotechnol. 4:660– 664, 1993. 24. Rutty, G. An investigation into the transference and survivability of human DNA following simulated manual strangulation with consideration of the problem of third party contamination. Int. J. Leg. Med. 116:170–173, 2001. 25. Sweet, D. J. Human bite marks—examination, recovery and analysis. In: Bowers, C. M. and Bell, G. L., eds., Manual of Forensic Odontology. American Society of Forensic Odontology, Colorado Springs, CO, 1995. 26. Clift, A., Lamont, C. M. Saliva in forensic odontology. J. Forensic Sci. Soc. 14:241– 245, 1974. 27. Bowers, C. M., Bell, G. L., eds. Manual of Forensic Odontology. American Society of Forensic Odontology, Colorado Springs, CO, 1995. 28. Sweet, D., Lorente, M., Lorente, J. A., Valenzuela, A., Villanueva, E. An improved method to recover saliva from human skin: the double swab technique. J. Forensic Sci. Soc. 42: 320–322, 1997. 29. Girardin, B. W., Faugno, D. K., Seneski, P. C., Slaughter, L., Whelan, M. Care of the sexually assaulted patient. In: Color Atlas of Sexual Assault.Mosby, St. Louis, MO, 1997, p. 96. 30. Lynnerup, N., Hjalgrim, H. Routine use of ultraviolet light in medicolegal examinations to evaluate stains and skin trauma. Med. Sci. Law. 35:165–168, 1995. 31. Santucci, K., Nelson, D., Kemedy, K., McQuillen, K., Duffy, S., Linakis, J. Wood’s lamp utility in the identification of semen. Pediatrics. 104:1342–1344, 1999. 32. Jones, D. N. The task of the Forensic Science Laboratory in the investigation of sexual offences. J. Forensic Sci. Soc. 3:88–93, 1963. 33. Stoilovic, M. Detection of semen and blood stains using Polilight® as a light source. Forensic Sci. Int. 51:289–296, 1991.


117

34. Marshall, S., Bennett, A., Fravel, H. Locating semen on live skin using visible fluorescence. Paper presented at the Sixth International Conference in Clinical Forensic Medicine of the World Police Medical Officers, March 17–22, Sydney, Australia, 2002. 35. Nelson, D. G., Santucci, K. A. An alternative light source to detect semen. Acad. Emerg. Med. 9:1045–1048, 2002. 36. Sweet, D., Lorente, J. A., Valenzuela A., Lorente, M., Villanueva, E. PCR-based DNA typing of saliva stains recovered from human skin. J. Forensic Sci. Soc. 42:447–451, 1997. 37. Cartwright, P. S. Reported sexual assault in Nashville-Davidson County, Tennessee, 1980–1982. Am. J. Obstet. Gynecol. 154:1064–1068, 1986. 38. Everett, R. B., Jimerson, G. K. The rape victim: a review of 117 consecutive cases. Obstet. Gynecol. 50:88–90, 1977. 39. Soules, M. R., Stewart, S. K., Brown, K. M., Pollard, A. A. The spectrum of alleged rape. J. Reprod. Med. 20:33–39, 1978. 40. Kerr, E., Cottee, C., Chowdhury, R., Jawad, R., Welch, J. The Haven: a pilot referral centre in London for cases of serious sexual assault. Br. J. Obstet. Gynaecol. 110: 267–271, 2003. 41. Riggs, N., Houry, D., Long, G., Markovchick, V., Feldhaus, K. Analysis of 1,076 cases of sexual assault. Ann. Emerg. Med. 35:358–362, 2000. 42. Vale, G. L., Noguchi, T. T. Anatomical distribution of human bite marks in a series of 67 cases. J. Forensic Sci. Soc. 28:61–69, 1983. 43. Wright, R., West, D. J. Rape—a comparison of group offences and lone assaults. Med. Sci. Law. 21:25–30, 1981. 44. Muller, C., Vogt, S., Goerke, R., Kordan, A., Weinmann, W. Identification of selected psychopharmaceuticals and their metabolites in hair by LC/ESI-CID/MS and LC/MS/MS. Forensic Sci. Int. 113:415–421, 2000. 45. Kintz, P., Cirimele, V., Jamey, C., Ludes, B. Testing for GHB in hair by GC/MS/ MS after single exposure. Application to document sexual assault. J. Forensic Sci. 48:195–199, 2003. 46. Negrusz, A., Moore, C. M., Hinkel, K. B., et al. Deposition of 7-aminoflunitrazepam and flunitrazepam in hair after a single dose of Rohypnol®. J. Forensic Sci. 46:1–9, 2001. 47. Guterman, L. Nailing the drug rapists. New Scientist. 160:4, 1998. 48. Wicks, J. Managing Director Tricho-Tec Ltd. Paper presented at the Association of Police Surgeons Autumn Symposium, Northamtpon, UK, November 2001. 49. Ledray, L. (1993) Evidence collection: an update. J. Sexual Abuse. 2:113–115. 50. Young, W., Bracken, A. C., Goddard, M. A. A., Matheson, S. The New Hampshire sexual assault medical examination protocol project committee sexual assault: review of a national model protocol for forensic and medical evaluation. Obstet Gynecol. 80:878–883, 1992. 51. Salter, M. T., Cooke, R. The significance of transfer of fibres to head hair, their persistence and retrieval. Forensic Sci. Int. 1981:211–221, 1996. 52. Exline, D. L., Smith, F. P., Drexler, S. G. Frequency of pubic hair transfer during sexual intercourse. J. Forensic Sci. 43:505–508, 1998.

118

Rogers and Newton

53. Mann, M. J. Hair transfers in sexual assault: a six-year case study. J. Forensic Sci. Soc. 35:951–955, 1990. 54. Stone, I. C. Hair and its probative value as evidence. Texas Bar J. 45:275–279, 1982. 55. Riis, R. Sexual assault combing evidence. Presented at the NWAFS Meeting, Jackson Hole, WY, 1990. 56. Higuchi, R., Von Beroldingen, C. H., Sensabaugh, G. F., Erlich, H. A. DNA typing from single hairs. Nature. 332:543–546, 1988. 57. Prahlow, J. A., Lantz, P. E., Cox-Jones, K., Rao, P.N., Pettenati, M. J. Gender identification of human hair using fluoresence in situ hybridisation. J. Forensic Sci. 41:1035–1037, 1996. 58. Cirimele, V., Kinttz, P., Staub, C., Mangin, P. Testing of human hair of flunitrazepam and 7-amino-flunitrazepam by GC/MS-NCY. Forensic Sci. Int. 84:189–200, 1997. 59. Ropero-Miller, J. D., Goldberger, B. A., Cone, E. J., Joseph, R. E. The deposition of cocaine and opiate analytes in hair and fingernails of humans following cocaine and codeine administration. J. Anal. Toxicol. 24:496–508, 2000. 60. Tsatsakis, A. M., Psillakis, T., Paritsis, N. Phenytoin concentration in head hair sections: a method to evaluate the history of drug use. J. Clin. Psychopharmacol. 20:560–573, 2000. 61. Enos, W. F., Beyer, J. C. The importance of examining skin and hair for semen in sexual assault cases. J. Forensic Sci. Soc. 26:605–607, 1981. 62. Thomas, F., Baert, H. A new means of identification of the human being: the longitudinal striation of the nails. Med Sci Law. 5, 39–40, 1965. 63. Lederer, T., Betz, P. Seidi, S. DNA analysis of fingernail debris using different multiplex systems: a case report. Int J Legal Med. 114, 263–266, 2001. 64. Evans, B. A., Bond, R. A., Macrae, K. D. Sexual behaviour in women attending a genitourinary medicine clinic. Genitourin Med. 64:43–48, 1988. 65. Keating, S. M., Higgs, D. F. Oral sex—further information from sexual assault cases. J Forensic Sci Soc. 32:327–331, 1992. 66. Bradham, G. B. The establishment of a treatment center for victims of rape. JSC Med Assoc. June, 283–286, 1981. 67. Sexual Offences Act. Website: (www.publications.parliament.uk), Home Office, London, UK, 2003. 68. Lind, W., Carlson, D. Recovery of semen from chewing gum in an oral sexual assault. J Forensic Identification. 45, 280–282, 1995. 69. Hampton, H. L. Care of the woman who has been raped. N. Engl. J. Med. 332:234– 237, 1995. 70. Willott, G. M., Crosse, M. A. The detection of spermatozoa in the mouth. J. Forensic Sci Soc. 26:125–128, 1986. 71. Allard, J. E. The collection of data from findings in cases of sexual assault and the significance of spermatozoa on vaginal, anal and oral swabs. Sci. Justice. 37:99– 108, 1997. 72. Enos, W. F., Beyer, J. C. Spermatozoa in the anal canal and rectum and in the oral cavity of female rape victims. J. Forensic Sci. Soc. 23:231–233, 1978. 73. Schlesinger, S. L., Borbotsina, J., O’Neill, L. Petechial hemorrhages of the soft palate secondary to fellatio. Oral Surg. 40:376–378, 1975.


119

74. Giansanti, J. S., Cramer, J. R., Weathers, D. R. Palatal erythema, another etiologic factor. Oral Surg. 40:379–381, 1975. 75. Damm, D. D., White, D. K., Brinker, C. M. Variations of palatal erythema secondary to fellatio. Oral Surg. 52:417–421, 1981. 76. Girardin, B. W., Faugno, D. K., Seneski, P. C., Slaughter, L., Whelan, M. Findings in sexual asault and consensual intercourse. In: Color Atlas of Sexual Assault. Mosby, St. Louis, MO, 1997, p. 41. 77. Bellizzi, R., Krakow, A. M., Plack, W. Soft palate trauma associated with fellatio: case report. Mil. Med. 145:787–788, 1980. 78. Girardin, B. W., Faugno, D. K., Seneski, P. C., Slaughter, L., Whelan, M. Findings in sexual asault and consensual intercourse. In: Color Atlas of Sexual Assault. Mosby, St. Louis, MO, 1997, p. 38. 79. Johnson, A. M., Wadsworth, J., Wellings, K., Field, J. Heterosexual practices. In: Sexual Attitudes and Lifestyles. Blackwell Scientific Publications, Oxford, UK, 1994, p. 160. 80. Bolling, D. R. Prevalence, goals and complications of heterosexual anal intercourse in a gynecologic population. J. Reprod. Med. 19:121–124, 1977. 81. Keating, S. M. Oral sex—a review of its prevalence and proof. J. Forensic Sci. Soc. 28:341–355, 1988. 82. Keating, S. M., Higgs, D. F. The detection of amylase on swabs from sexual assault cases. J. Forensic Sci. Soc. 34:89–93, 1994. 83. Skerlavy, M., Epstein, J. A., Sobrero, A. J. Cervical mucus amylase levels in normal menstrual cycles. Fertil. Steril. 19:726–730, 1968. 84. Banaschak, S., Moller, K., Pfeiffer, H. Potential DNA mixtures introduced through kissing. Int. J. Leg. Med. 111:284–285, 1998. 85. Mader, C. L. Lingual frenulum ulcer resulting from orogenital sex. J. Am. Dent. Assoc. 103:888–890, 1981. 86. Johnson, A. M., Wadsworth, J., Wellings, K., Field, J. Heterosexual practices. In: Sexual Attitudes and Lifestyles. Blackwell Scientific Publications, Oxford, UK, 1994. 87. Wellings, K., Nanchahai K., Macdowall, W., Sexual behaviour in Britan: early heterosexual experience. Lancet. 358:1843–1850, 2001. 88. Howitt, J., Rogers, D. J. Adult sexual offences and related matters. In: McLay, W. D. S., ed., Clinical Forensic Medicine. Greenwich Medical Media, Hong Kong, 1996, pp. 193–218. 89. Lines 1844 I.C. and K. 393. 90. Slaughter, L., Brown, C. R. V., Crowley, S., Peck, R. Patterns of genital injury in female sexual assault victims. Am. J. Obstet. Gynecol. 176:609–616, 1997. 91. Jenny, C., Kunhs, M. L., Fukiko, A. Presence of hymens in newborn female infants. Pediatrics. 80:399–400, 1987. 92. Chadwick, D. L., Berkowitz, C. D., Kerns, D., McCann, J., Reinhart, M. A., Strickland, S. Color Atlas of Child Sexual Abuse. Year Book Medical Publishers, Chicago, IL, 1989. 93. Berenson, A., Chacko M. R., Wiemann, C. M., Mishaw, C. O., Friedrich, W. N., Grady, J. J. A case control study of anatomic changes resulting from sexual abuse. Am. J. Obstet. Gynecol. 182:820–834, 2000.

120

Rogers and Newton

94. Berenson, A., Heger, A., Andrews, S. The appearance of the hymen in the newborn. Pediatrics. 87:458–465, 1991. 95. Berenson, A. Appearance of the hymen in prepubertal girls. Pediatrics. 89:387– 394, 1992. 96. Emans, S. J., Woods, E., Allred, E., Grace, E. Hymenal findings in adolescent women, impact of tampon use and consensual sexual activity. Pediatrics. 125:153– 160, 1994. 97. Muram, D. Anatomic and physiological changes. In: Evaluation of the Sexually Abused Child. Oxford University Press, New York, NY, 1992, p. 72. 98. Emans, S. J. H., Goldstein, D. P. The physiology of puberty. In: Pediatric and Adolescent Gynecology, 3rd Ed., Little, Brown, Boston, MA, pp. 95–97, 1990. 99. Porkorny, S. F. Configuration of the prepubertal hymen. Am. J. Obstet. Gynecol. 157:950–956, 1987. 100. McCann, J., Wells, R., Simon, M., Voris, J. Genital findings in prepubertal girls selected for nonabuse: a descriptive study. Pediatrics. 86:428–439, 1990. 101. Girardin, B. W., Faugno, D. K., Seneski, P. C., Slaughter, L., Whelan, M. Care of the sexually assaulted patient. In: Color Atlas of Sexual Assault. Mosby, St. Louis, MO, pp. 111–118, 1997. 102. Masters, W. H., Johnson, V. E. The vagina. In: The Human Sexual Response. Little Brown, Boston, MA, pp. 69–70, 1966. 103. Robinson, E. G. Management of the rape victim. Can. Med. Assoc. J. 115:520–523, 1976. 104. Reade, D. J. Early scientific investigations of sexual assault. Police Surg. April:42– 46, 1986. 105. Eungprabhanth, V. Finding of the spermatozoa in the vagina related to elapsed time of coitus. Z. Rechtamedizin. 74:301–304, 1974. 106. Florence, A. Du sperme et des taches de sperme en medecine legale. Arch. d’Anthropol. Criminelle d’ Criminolo Psychol. Normale Pathol. 11:146–165, 1896. 107. Laurell, C. B. Electroimmunoassay. Scand. J. Clin. Lab. Invest. 29:21, 1972. 108. Collins, K. A., Rao, P. N., Hayworth, R., et al. Identification of sperm and non-sperm male cells in cervicovaginal smears using Fluoresecence In Situ Hybrid-isation— applications in alleged sexual assault cases. J. Forensic Sci. 39:1347–1355, 1994. 109. Sibille, I., Duverneuil, C., Lorin de la Grandmaison, G., Y–STR DNA amplification as biological evidence in sexually assaulted female victims with no cytological detection of spermatozoa. Forensic Sci. Int. 125:212–216, 2002. 110. Rao, P. N., Collins, K. A., Geisinger, K. R., et al. Identification of male epithelial cells in routine post-coital cervicovaginal smears using Fluoresecence In Situ Hybridisation—application in sexual assault and molestation. Am. J. Clin. Path. 104:32–35, 1995. 111. Divall, G. B. Methods for the identification and menstrual blood. In: Lee, H.G. and Gaensslen, R.E., eds., Advances in Forensic Science, Biomedical Publications, Foster City, CA, pp. 1–14, 1985.


121

112. Allard, J. The facts of life. Contact-FSS Internal Publication. 25, 1996. 113. Davis, A., Wilson, E. The persistence of seminal constituents in the human vagina. Forensic Sci. 3:45–55, 1974. 114. Graves, H. C. B., Sensabaugh, G. F., Blake, E. T. Postcoital detection of a malespecific semen protein: application to the investigation of rape. N. Engl. J. Med. 312:338–340, 1985. 115. Wilson, E. M. A comparison of the persistence of seminal constituents in the human vagina and cervix. Police Surg. 22:44–45, 1982. 116. Keating, S. M. The laboratory’s approach to sexual assault cases. Part 2. Demonstration of the possible offender. J. Forensic Sci. Soc. 28:99–110, 1988. 117. Dziegelewski, M., Simich, J. P., Rittenhouse-Olson, K. Use of a Y chromosome probe as an aid in the forensic proof of sexual assault. J. Forensic Sci. 47:601– 604, 2002. 118. Gaensslen, R. E. Survival of spermatozoa in the vagina. In: Gaensslen, R. E., ed., Sourcebook in Forensic Serology, Immunology and Biochemistry. United States Government Printing Office, Washington, DC, pp. 144–152, 1983, 119. Silverman, E. M., Silverman, A. G. Persistence of spermatozoa in the lower genital tracts of women. JAMA. 240:1875–1877, 1978. 120. Rupp, J. C. Sperm survival and prostatic acid phosphatase activity in victims of sexual assault. J. Forensic Sci. Soc. 14:177–183, 1969. 121. Paul, D. M. Examination of the living. In: Taylor’s Principles and Practice of Medical Jurisprudence, 13th Ed. Mant A. K., ed., Churchill Livingstone, Edinburgh, Scotland, pp. 64–105, 1984. 122. Allard, J. E. The collection of data from findings in cases of sexual assault and the significance of spermatozoa on vaginal, anal and oral swabs. Sci. Justice. 37:99– 108, 1997. 123. Slaughter, L., Brown, C. R. V. Colposcopy to establish physical findings in rape victims. Am. J. Obstet. Gynecol. 166:83–86, 1992. 124. Cartwright, P. S., Moore, R. A., Anderson, J. R., Brown, D. H. Genital injury and implied consent to alleged rape. J. Reprod. Med. 31:1043–1044, 1986. 125. Ramin, S. M., Satin, A. J., Stone, S. C., Wendel, G. D. Sexual assault in postmenopausal women. Obstet. Gynecol. 80:860–864, 1992. 126. Norvell, M. K., Benrubi, G. I., Thompson, R. J. Investigations of microtrauma after sexual intercourse. J. Reprod. Med. 29:269–271, 1984. 127. Fraser, I. S., Lahteenmaki, P., Elomaa, K., et al. Variations in vaginal epithelial surface appearance determined by colposcopic inspection in healthy sexually active women. Hum. Reprod. 14:1974–1978, 1999. 128. Lauber, A. A., Souma, M. L. Use of toluidine blue for documentation of traumatic intercourse. Obstet. Gynecol. 60:644–648, 1982. 129. McCauley, J., Gorman, R. L., Guzinski, G. Toluidine blue in the detection of perineal lacerations in pediatric and adolescent sexual abuse victims. Pediatrics. 78:1039– 1043, 1986. 130. McCauley, J., Guzinski, G., Welch, R., Gorman, R., Osmers, F. Toluidine blue in the corroboration of rape in adult victim. Am. J. Emerg. Med. 5:105–108, 1987.

122

Rogers and Newton

131. Wilson, K. F. G. Lower genital tract trauma. Aust. N. Z. J. Obstet. Gynaecol. 6:291– 293, 1966. 132. Adams, J. A., Girardin, B., Faugno, D. Adolescent sexual assault: documentation of acute injuries using photo-colposcopy. J. Pediatric Adolesc. Gynecol. 14:175– 180, 2001. 133. Bowyer, L., Dalton, M. E. Female victims of rape and their genital injuries. Br. J. Obstet. Gynecol. 104:617–620, 1997. 134. Manser, T. Findings in medical examinations of victims and offenders in cases of serious sexual offences—a survey. Police Surg. 38:4–27, 1991. 135. Kellogg, N. D., Parra, J. M. Linea vestibularis: a previously undescribed normal genital structure in female neonates. Pediatrics. 87:926–929, 1991. 136. De San Lazaro, C., Sivaramakrishnan, S. Summer sandal genital injury. J. Clin. Forensic Med. 5:32–33, 1998. 137. Dowd, M. D., Fitzmaurice, L., Knapp, J. F., Mooney, D. The interpretation of urogenital findings in children with straddle injuries. J. Pediatric Surg. 29:7–10, 1994. 138. Ferrell, J. Sexual assault: clinical issues, Foley catheter balloon technique for visualizing the hymen in female adolescent sexual abuse victims. J. Emerg. Nurs. 21: 585–586, 1995. 139. Muram, D. Child sexual abuse: relationship between sexual acts and genital findings. Child Abuse Negl. 13:211–216, 1989. 140. McCann, J., Voris, J., Simon, M. Genital injuries resulting from sexual abuse: a longitudinal study. Pediatrics. 89:307–317, 1993. 141. Berkowitz, C., Evik, S., Logan, M. A simulated ‘acquired’ imperforate hymen following the genital trauma of sexual abuse. Clin. Pediatr. 26:307–309, 1993. 142. Goodyear-Smith, F. A., Laidlaw, T. M. What is an “intact hymen”? A critique of the literature. Med. Sci. Law. 38:289–301, 1998. 143. Teixera, W. Hymenal colposcopic examination in sexual offences. Am. J. Forensic Med. Pathol. 3:201–214, 1981. 144. Underhill, R., Dewhurst, J. The doctor cannot always tell: medical examination of the ‘intact’ hymen. Lancet. 1:375–376, 1978. 145. Wilson, F., Swartz, D. P. Coital injuries of the vagina. Obstet Gynecol. 39:182–184, 1972. 146. Fish, S. A. Vaginal injury due to coitus. Am. J. Obstet. Gynecol. 72:544–548, 1956. 147. Metsala, P., Nieminen, U. Traumatic lesions of the vagina. Acta Obstet. Gynecol. Scand. 47:483–488, 1968. 148. Gray, M. J., Norton, P., Treadwell, K. Tampon-induced injuries. Obstet. Gynecol. 58:667–668, 1981. 149. Hakanson, E. Y. Trauma to the female genitalia. Lancet. 86:286–291, 1966. 150. Burgess, A. W., Holmstrom, L. L. The rape victim in the emergency ward. Am. J. Nurs. 73:1741–1745, 1973. 151. Slaughter, L., Brown, C. R. V. Cervical findings in rape victims. Am. J. Obstet. Gynecol. 164:528–529, 1991.


123

152. Fraser, I. S., Lahteenmaki, P., Elomaa, K., et al. Variations in vaginal epithelial surface appearance determined by colposcopic inspection in healthy, sexually active women. Hum. Reprod. 14:1974–1978, 1999. 153. Masters, W. H., Johnson, V. E. The penis. In: The Human Sexual Response. Little Brown, Boston, MA, pp. 171–203, 1966. 154. Muram, D. Anatomy. In: Hegar, A. and Emans, S. J., eds., Evaluation of the Sexually Abused Child. Oxford University Press, New York, NY, p. 73, 1992. 155. Girardin, B. W., Faugno, D. K., Seneski, P. C., Slaughter, L., Whelan, M. Anatomy and the human sexual response. In: Color Atlas of Sexual Asault. Mosby, St. Louis, MO, p. 11, 1997. 156. Stephen, J. C., Collins, K. A., Pettenati, M. J., Fitts, M. Isolation and identification of female DNA on post-coital penile swabs. Am. J. Forensic Med. Pathol. 21:97– 100, 2000. 157. Farah, R., Cerny, J. C. Penis tourniquet syndrome and penile amputation. Urology. 11:310–311, 1973. 158. Garty, B. Z., Mimouni, M., Varsano, I. Penile tourniquet sydrome. Cutis. 31:431– 432, 1983. 159. Kerry, R. L., Chapman, D. D. Strangulation of appendages by hair and thread. Pediatric Surg. 8:23–27, 1973. 160. Wheatley, J. K. Genital injury during intercourse. Med. Aspects Hum. Sex. 17:24A– 24J, 1983. 161. Ball, T. P., Pickett, J. D. Traumatic lymphangitis of penis. Urology. IV:594–597, 1975. 162. Davies, D. M., Mitchell, I. Fracture of the penis. Br. J. Urol. 50:426, 1978. 163. Pryor, J. P., Hill, J. T., Packham, D. A., Yates-Bell, A. J. Penile injuries with particular reference to injury to the erectile tissue. Br. J. Urol. 53:42–46, 1981. 164. Paul, D. M. The medical examination of the live rape victim and the accused. Leg. Med. Ann. 139–153, 1977. 165. Wells, D. L. Genital trauma amongst young boys. J. Clin. Forensic Med. 3:129– 132, 1996. 166. Hobbs, C. J., Wynne. J. M. Physical signs of child abuse. W. B. Saunders, Philadelphia, PA, 1996. 167. Johnson, A. M., Wadsworth, J., Wellings, K., Field, J. Heterosexual practices. In: Sexual Attitudes and Lifestyles. Blackwell Scientific Publications, Oxford, UK, p. 163, 1994. 168. Johnson, A. M., Wadsworth, J., Wellings, K., Field, J. Sexual diversity and homosexual behaviour. In: Sexual Attitudes and Lifestyles. Blackwell Scientific Publications, Oxford, UK, pp. 183–223, 1994. 169. Bang, L. Rape victims—assaults, injuries and treatment at a medical rape trauma service at Oslo Emergency Hospital. Scand. J. Primary Health Care. 11:15–20, 1993. 170. Hillman, R. J., O’Mara, N., Taylor-Robinson, D., Williams Harris, J. R. Medical and social aspects of sexual assault of males: a survey of 100 victims. Br. J. Gen. Pract. 40:502–504, 1990.

124

Rogers and Newton

171. Hillman, R., O’Mara, N., Tomlinson, D., William Harris, J. R. Adult male victims of sexual assault: an underdiagnosed condition. Int. J. STD AIDS. 2:22–24, 1991. 172. Temkin, J. Rape and the Legal Process. Sweet & Maxwell, London, UK, 1987. 173. Royal College of Physicians. Glossary of terms. In: Physical Signs of Sexual Abuse in Children. RCP, London, UK, pp. 67–68, 1997. 174. Girardin, B. W., Faugno, D. K., Seneski, P. C., Slaughter, L., Whelan, M. Anatomy and the human sexual response. In: Color Atlas of Sexual Assault. Mosby, St. Louis, MO, pp. 14–16, 1997. 175. Fenger, C. Anal canal. In: Sternberg, S. S., ed., Histology for Pathologists, 2nd Ed., Lippincott-Raven, Philadelphia, PA, pp. 551–571, 1997. 176. Nivatovongs, S., Stern, H. S., Fryd, D. S. The length of the anal canal. Dis. Colon Rectum. 24:600–611, 1981. 177. Goligher, J. Surgical anatomy and physiology of the anus, rectum and colon. In: Surgery of the Anus, Rectum and Colon, 5th Ed. Baillière Tindall, London, UK, p. 15, 1984. 178. Parks, A. G., Porter, N. H., Melzak, J. Experimental study of the reflex mechanism controlling the muscles of the pelvic floor. Dis. Colon Rectum. 5:401–414, 1962. 179. Davies, A. Discussion of spermatozoa in the anal canal and rectum and in the oral cavity of female rape victims. J. Forensic Sci. Soc. 24:541–542, 1979. 180. Green, R. J., Sayce, M. D. Problems associated with the typing of semen on anal swabs. J. Forensic Sci. Soc. 25:55–56, 1985. 181. Willott, G. M., Allard, J. E. Spermatozoa—their persistence after sexual intercourse. Forensic Sci. Int. 19:135–154, 1982. 182. Bush, R. A., Owen, W. F. Trauma and other noninfectious problems in homosexual men. Med. Clin. North Am. 70:549–566, 1986. 183. Goligher, J. Anal fissure. In: Surgery of the Anus, Rectum and Colon, 5th ed. Baillière Tindall, London, UK, p. 150, 1984. 184. Keighley, M. R. B., Williams, N. S. Fissure in ano. In: Surgery of the Anus, Rectum and Colon. Saunders, Philadelphia, PA, pp. 364–386, 1993. 185. Girardin, B. W., Faugno, D. K., Seneski, P. C., Slaughter, L., Whelan, M. Findings in sexual assault and consensual intercourse. In: Color Atlas of Sexual Assault. Mosby, St. Louis, MO, p. 50, 1997. 186. Girardin, B. W., Faugno, D. K., Seneski, P. C., Slaughter, L., Whelan, M. Glossary. In: Color Atlas of Sexual Assault. Mosby, St. Louis, MO, p. 192, 1997. 187. Crass, R. A., Tranbaugh, R. F., Kudsk, K. A., Trunkey, D. D. Colorectal foreign bodies and perforation. Am. J. Surg. 142:85–88, 1981. 188. Barone, J. E., Yee, J., Nealon, T. F. Management of foreign bodies and trauma of the rectum. Surg. Gynecol. Obstet. 56:453–457, 1983. 189. Rakotomalala, L., de Parades, V., Parisot, C., Atienza, P. Ruptures multiples du sphincter interne après viol anal: une cause peu connue d’incontinence anale. Gastroenterol. Clin. Biol. 20:1142–1143, 1996. 190. Chun, A. B., Rose, S., Mitrani, C., Silvestre, A. J., Wald, A. Anal sphincter structure and function in homosexual males engaging in anoreceptive intercourse. Am. J. Gastroenterol. 92:465–468, 1997.


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191. Miles, A. J. G., Allen-Mersh, T. G., Wastell, C. Effect of anoreceptive intercourse on anorectal function. J. R. Soc. Med. 86:144–147, 1993. 192. Blackledge, R.D., Condom trace evidence: a new factor in sexual assault investigations. FBI Law Enforcement Bull, May 12–16, 1996. 193. Greaves, C. Safe sex? Is it so safe? Contact-FSS Internal Publication. 25:20–21, 1998. 194. McCrane W.C., Delly J.G. (1973) The Particles Atlas. 3:600, 702, 1973. 195. Blackledge, R. D., Vincenti, M. Identification of polydimethylsiloxane lubricant traces from latex condoms in cases of sexual assault. J. Forensic Sci. Soc. 34:245– 256, 1994. 196. Jansen, K. Date rape drugs. Bull. Int. Assoc. Forensic Toxicol. 28:18–20, 1998. 197. Ferner, R. E. Ethanol. In: Forensic Pharmacology. Oxford University Press, Oxford, UK, pp. 122–124, 1996. 198. Kubba, A., Wilkinson, C. Recommendations for Clinical Practice: Emergency Contraception. FFP & RHC RCOG, London, UK, 1998. 199. Jenny, C., Hooton, T. M., Bowers, A., et al. Sexually transmitted diseases in victims of rape. N. Engl. J. Med. 322:713–716, 1990. 200. Estreich, S., Forster, G. E., Robinson, A. Sexually transmitted diseases in rape victims. Genitourin Med. 66:433–438, 1990. 201. Robinson, A. J., Watkeys, J. E. M., and Ridgeway, G. L. Sexually transmitted organisms in sexually abused children. Arch. Dis. Child. 79:356–358, 1998. 202. British Association for Sexual Health and HIV. National guidelines on the management of adult victims if sexual assault. Available at Website: (www.mssvd.org). Accessed on November 3, 2002. 203. Ross, J. D. C., Scott, G. R., Busuttil, A. Rape and sexually transmitted diseases: patterns of referral and incidence in a department of genitourinary medicine. J. R. Soc. Med. 84:657–659, 1991. 204. Lacey, H. B. Rape, the law and medical practitioners. Br. J. Sex. Med. Winter:89– 92, 1991. 205. Hammerschlag, M. R. Sexually transmitted diseases in sexually abused children: medical and legal implications. Sex. Transm. Inf. 74:167–174, 1998. 206. Thomas, A., Forster, G., Robinson, A. Rogstad K. National guidelines on the management of suspected sexually transmitted infections in children and young people. Available at Website: (www.mssvd.org). Accessed 2003. 207. Girardin, B. W., Faugno, D. K., Seneski, P. C., Slaughter, L., Whelan, M. Care of the sexually assaulted patient. In: Color Atlas of Sexual Assault. Mosby, St. Louis, MO, p. 123, 1997. 208. Hochbaum, S. R. The evaluation and treatment of the sexually assaulted patient. Emerg. Med. Clin North Am. 5:601–622, 1987. 209. Gibb, A. M., McManus, T., Forster, G. E. Should we offer antibiotic prophylaxis post sexual assault? Int. J. STD AIDS. 14:99–102, 2003. 210. Crowe, C., Forster, G. E., Dinsmore, W. W., Maw, R. D. A case of acute hepatitis B occurring four months after multiple rape. Int. J. STD AIDS. 7:133–134, 1996. 211. Limb, S., Kawsar, M., and Forster, G. E. HIV post-exposure prophylaxis after sexual assault: the experience of a sexual assault service in London. 13:602–605, 2002.

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212. Weinberg, G. A. Post-exposure prophylaxis against human immunodeficiency virus infection after sexual assault. Pediatr. Infect. Dis. 21:957-960, 2002. 213. National HIV Prevention Information Service. Post-exposure prophylaxis (PEP) against HIV infection following sexual and injection drug use exposure. Edward King of NAM Publications, London, UK, 1998. 214. Burgess, A. W., Holmstrom, L. L. Rape trauma syndrome. Am. J. Psychiatry. 131: 981–986. 215. Duddle, M. Emotional sequelae of sexual assault. J. R. Soc. Med. 84:26–28, 1991.

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Chapter 4

Injury Assessment, Documentation, and Interpretation Jason Payne-James, Jack Crane, and Judith A. Hinchliffe 1. INTRODUCTION The ability to appropriately assess, document, and interpret injuries that have been sustained is a key part of the work of any forensic physician or forensic pathologist. Crimes of violence are increasing throughout the world. Nonjudicial assault, such as torture, has also become more widely recognized (1). It has been suggested that the definition of physical injury in the forensic medical context should be “damage to any part of the body due to the deliberate or accidental application of mechanical or other traumatic agent” (2). This chapter specifically addresses the issues of physical assault and the assessment and documentation of wounds or injury. The purpose of assessment and documentation is to assist in establishing how a wound or injury is caused, which may often be at issue in courts or tribunals of law. These two skills should be within the remit of any doctor, although they are rarely done fully and appropriately. The interpretation of the causes of wounds and injuries is probably best undertaken by those with forensic expertise, because there may be many factors involved in such interpretation. Because interpretation of wounds and injuries may be undertaken by review of documents, for example written descriptions, body chart mapping, or photographs, it is imperative that the descriptions are comprehensible to all. For From: Clinical Forensic Medicine: A Physician’s Guide, 2nd Edition Edited by: M. M. Stark © Humana Press Inc., Totowa, NJ 127

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example, the term wound has specific meaning in certain jurisdictions, for example relating to whether the skin or mucosa is completely breached. It is more appropriate for those who are documenting injuries to ensure that they have documented them in detail and unambiguously so that the courts can then make the decision regarding the most appropriate judicial interpretation of the injury or injuries described and their relevance to the case. In many cases, the initial examination and assessment may have been undertaken for purely therapeutic purposes, and the forensic significance of the injuries may not become apparent until several weeks or months later. Scrutiny of the doctor’s notes at a later stage, possibly in court, may reveal serious deficiencies, which not only bring discredit on the individual practitioner and the profession as a whole but also can seriously prejudice the legal proceedings. Pediatricians and emergency medicine specialists are typical of those nonforensic practitioners who may encounter patients with injuries that may be contentious within court proceedings.

2. ASSESSMENT AND DOCUMENTATION Assessment and interpretation of injury depends on establishing a good history and undertaking an appropriate physical examination and recording the findings contemporaneously, clearly, and unambiguously. Such documentation (whether notes, body charts, or computer records) may be reviewed by other doctors, legal advisers, and the courts. Consent for the examination and for subsequent production of a medical report should be sought from the individual being examined. It should also be remembered that vexatious or frivolous accusations of assault can be made, and the examiner should be aware that false allegations and counter allegations do occur, which may only become obvious at a later date.

2.1. Key Factors Table 1 identifies key factors that may be relevant in the examination of anyone with injuries and that, if relevant, should be determined when the history is taken from the injured person. It is important to document the time at which the injury was said to have occurred. Injuries heal, and thus the appearance of an injury after assault is time dependent. Assaults may not be reported for days or weeks after the incident. There may be several injuries from different incidents. Specific times should be sought for each. If more than one type of assault has occurred, clear records must be made of which injury was accounted for by which implement. Document the handedness (left, right, or both) of both the victim and

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Table 1 Potential Relevant Factors to Determine From History • • • • • • • • • •

How was the injury sustained? Weapon or weapons used (is it [are they] still available?) What time was the injury sustained? Has the injury been treated? Pre-existing illnesses (e.g., skin disease). Regular physical activity (e.g., contact sports). Regular medication (e.g., anticoagulants, steroids). Handedness of victim and suspect. Use of drugs and alcohol. Clothing worn.

Table 2 Potential Relevant Information Required When Assessing Injury • Location (anatomical—measure distance from landmarks) • Pain • Tenderness • Stiffness • Causation • Handedness

• • • • • • • •

Type (e.g., bruise, cut, or abrasion) Size (use metric values) Shape Color Orientation Age Time Transientness (of injury)

the assailant, if known, because this may affect the interpretation of injury causation. Witnesses may give different accounts of the incident; it is the forensic physician’s role to assist the court in determining the true account. These accounts may also be influenced by the effect of drugs and/or alcohol, and it is appropriate to assess the influence that these may have in each case. Knowledge of the type of weapon used can be important when assessing injury because particular implements can give identifiable injuries. The type of clothing worn (e.g., long-sleeved shirts or armless vests) should be noted. When examining any individual for injury, all these features should at least be considered to see whether they may have relevance to the case; others may become relevant as the examination progresses or as other accounts of any assault are given. Documentation of injuries can be in several formats, including hand-drawn notes, annotated pro forma diagrams, and photographic. Figure 1 illustrates one form of body chart and note system (3). Table 2 lists the characteristics of each injury that may be needed for appropriate documentation.

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Fig. 1. Body chart and note system.

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• Wheals and erythema (reddening) • Hematoma • Abrasions (grazes) • Scuff/brush abrasions • Lacerations • Slash • Stab wounds

• Bruises (contusion or ecchymosis) • Petechiae • Scratches • Point abrasion • Incisions • Chop • Firearms • Bites

Digital images have now become an appropriate way of documenting injury, and the digital image evidence should be supported by contemporaneous written and hand-drawn notes. Ensure at the time of examination that each injury is accounted for by the account given. If an injury is not consistent with the account given, question it at the time. In many cases, individuals who have been involved in fights or violent incidents are simply unaware of the causation of many sites of injury. It may be appropriate (particularly with blunt injury) to reexamine injuries 24–48 hours later to see how injuries evolve and whether bruises have appeared or other sites of injury noted. Pretreatment and posttreatment examination and photography may be useful.

2.2. Types of Injury It is important that anyone who is involved in injury assessment understand the range of terms that can be applied to different injury, and this may depend on certain factors, such as country of origin or medical specialty. Thus, each practitioner should have a system of his or her own that ensures that the nature of each injury is described clearly, reproducibly, and unambiguously in note form, using accepted terms of classification. The most common reason why medical evidence on injuries given in court is contentious is the confusing assortment of terms used by doctors and the inappropriate or inaccurate description of a wound, for example, using the term laceration to describe a clean-cut wound caused by a bladed weapon, such as a knife, when the wound was, in fact, an incision (4). It is therefore essential that for medicolegal purposes a standard nomenclature be adopted when describing injuries. The following classification is one that is appropriate and clear, and most visible injuries will fall into one of the groups listed in Table 3. These injuries type are explained in the following paragraphs.

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Deliberate injury may be divided into two main types: blunt impact or blunt force injury and sharp implement injury. Blunt force injury describes the cause of injuries not caused by instruments or objects with cutting edges. The injury may be caused by traction, torsion, or shear stresses. The body may move toward the blunt object (e.g., a fall or push against a wall), or the blunt object may move towards the body. Examples of objects that cause blunt impact injuries include fists, feet, baseball bats, and police batons. A blunt force blow can cause a range of symptoms or signs, and the resultant injuries depend on numerous factors, including force, location, and impacting surface, which range from no visible evidence of injury to tenderness or pain at the impact sites, reddening, swelling, bruising, abrasions, cuts (lacerations), and broken bones. Each injury type may be present alone or in combination. Such injuries are seen at the point of contact of the impacting object on the body. Bruises may migrate from the point of contact by gravity after a period of time. Abrasions give a clear indication of the impact site. In some cases, injury patterns may indicate whether a particular impacting object was involved. Blunt impact injuries can be described in terms of force applied as being weak, weak/moderate, moderate, moderate/severe, or severe. Sharp injuries are those caused by any implement with cutting edges (e.g., knives, scissors, or glass). The injuries may be of varied types, including incised, where the cutting edge runs tangentially to the skin surface cutting through skin and deeper anatomical structures, or stab, where the sharp edge penetrates the skin into deeper structures. An incised wound is generally longer than it is deep, whereas a stab wound is generally deeper than it is wide. Forces required to cause sharp injuries and the effect of such injuries are variable because a sharp pointed object may penetrate vital structures with minimal force. Special types of cutting injuries included slash- or chop-type injuries from weapons such as machetes. Many impacts may cause initial pain and discomfort, which resolves within a few minutes, and tenderness, which may still be elicited hours or days later, with no visible sign of injury. The lay person must be aware that the absence of visible injury does not imply that no assault or injury has occurred. Wheals and erythema are also nonpermanent evidence of trauma caused by initial vasodilatation and local release of vasoactive peptides after an injury, such as a slap, scratch, or punch, which will leave no mark after a few hours. The classic features of the triple reaction are present, but no specific damage is done to any tissues. Thus, an initial reddening associated with pain with possible subsequent development of local swelling may be present initially, but after a few hours has completely resolved, unlike bruising, which will still be present after 24 hours or more.

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2.3. Size and Shape of the Injury Even though the size of an injury is perhaps the easiest measurement to ascertain, it is probably the most common omission from medical records. It should be ascertained using a ruler or a pair of calipers and recorded in centimeters or millimeters. Because measurements given in imperial units may be easier for some individuals to understand, it is also acceptable to include the equivalent size of an injury in inches. The shape of the wound should also be noted; simple terms, such as circular, triangular, V-shaped, or crescent-shaped, best express this characteristic, but if the wound shape is irregular or complex, then it is possibly easier to record this feature on a body chart. Wounds may also have depth, but it is often not possible to determine this accurately in the living.

2.4. Position of the Injury The best method of pinpointing the location of an injury is to use fixed anatomical landmarks. On the head, one can use the eyes, ears, nose, and mouth; on the neck, the prominence of the thyroid cartilage and the sternocleidomastoid muscles can be used; and on the trunk, the nipples, umbilicus, and bony prominences can be used as points of reference. The advantages of using simple anatomical diagrams and body charts for locating the injury are self-evident. It is a simple process to record the position of an injury accurately, yet when medical records are reviewed, it is both surprising and disappointing to find only a vague indication of location.

2.5. Aging Injuries Allotting a specific time or time frame to the infliction of an injury is one of the most frequently requested and most contentious of issues in forensic medicine. Injuries inflicted shortly before examination (both of the living and the dead) show no sign of healing. The healing process depends on several variables, including the site of injury, the force applied, the severity of tissue damage, infection, treatment, etc., and these all make assessment of the age of a wound extremely difficult and inaccurate. Bruises often become more prominent a few hours or even days after infliction because of diffusion of blood closer to the skin surface; on occasion, a recent deep bruise may be mistaken for an older, more superficial lesion. Bruises resolve over a variable period ranging from days to weeks; the larger the bruise, the longer it will take to disappear. The colors of a bruise can include (dependent on the examiner) blue, mauve, purple, brown, green, and yellow, and all tints and hues associated with these. Many bruises exhibit multiple colors. The only sub-

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stantial study that looks at bruise evolution by color showed that a bruise with a yellow color was more than 18 hours old and that red, blue, and purple/ black could occur anytime within 1 hour of bruising to resolution (up to 21 days in the study) (5). Thus, coloration of bruises and the progress and change of color patterns cannot, with the exception of a yellow bruise, which may be considered to be more than 18 hours old, be used to time the injury. It should be emphasized that estimation of bruise age from color photographs is also imprecise and should not be relied on because the color values are not accurate (6). This has recently been confirmed in another study (7) that identified great interobserver variability in color matching both in vivo and in photographic reproductions. Other specific information (e.g., a witnessed blow) is the only way of reliably timing a bruise. Abrasions sustained during life are usually red-brown and exude serum and blood, which hardens to form a scab. This scab organizes over a period of days before detaching to leave a pink, usually intact, surface. In the absence of medical intervention, lacerations tend to heal with scarring, usually over a period of days or weeks, whereas incisions, the edges of which may be apposed, can heal within a few days, although some may scar significantly.

2.6. Transient Lesions Swelling, redness, and tenderness, although frequently caused by trauma, are not specific signs of injury. Although it is important to record whether these features are present, it must be remembered that there also may be nontraumatic causes for these lesions (e.g., eczema/dermatitis or impetigo). Red marks outlining an apparent injury, for example, the imprint of a hand on the slapped face or buttock of a child, should be photographed immediately because such images may fade within an hour or so and leave no residual marks.

3. TYPES OF INJURY 3.1. Bruises The terms contusion and ecchymosis have been used to differentiate between different types of injury that can more simplistically be called bruising. These terms have been used variously to describe different injury sizes but do not enhance understanding of either causation or mechanism of injury and should no longer be used. A hematoma is best used to refer to a collection of blood forming a fluctuant mass under the skin and may be associated with substantial trauma. The difference between that and a standard bruise is that a hematoma may be capable of being aspirated in the same way a collection of

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Fig. 2. Production of bruising.

pus is aspirated. Bruising is caused when an impact damages blood vessels so that blood leaks into the perivascular tissues and is evident on the skin surface as discoloration. Such discoloration changes in color, shape, and location as the blood pigment is broken down and resorbed. In some cases, although blood vessels may be damaged, there may be no visible evidence on the skin. In certain cases, it may take hours or days for any bruise to become apparent because the blood diffuses through damaged tissue. The blunt force ruptures small blood vessels beneath the intact skin, and blood then escapes to infiltrate the surrounding subcutaneous tissues under the pumping action of the heart (see Fig. 2). Thus, theoretically at least, bruising is not produced after death. In fact, severe blows inflicted after death may cause some degree of bruising, although this is usually only slight. Bruises may be associated with other visible evidence of injury, such as abrasions and lacerations, and these lesions may obscure the underlying bruise. Bruising may need to be differentiated from purpura, which develop spontaneously in those with a hemorrhagic tendency and in the elderly and tend to be rather blotchy, are less regular in outline, and are usually confined to the forearms and lower legs. Bruises vary in severity according to the site and nature of the tissue struck, even when the force of the impact is the same.

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Fig. 3. Production of a black eye. (1) Direct blow to the orbit. (2) Injury to the front of the scalp. (3) Fracture of base of scull.

Where there is an underlying bony surface and the tissues are lax, as in the facial area, a relatively light blow may produce considerable puffy bruising. The orbit is the most vulnerable, giving rise to the common “black eye.” However, remember that there are other mechanisms for the production of a black eye, such as an injury to the front of the scalp draining down over the supraorbital ridge or a fracture of the base of the skull allowing blood to escape through the roof of the orbit (see Fig. 3). Bruises can enlarge over a variable period of time, which can be misleading regarding the actual site of injury. Because a bruise is a simple mechanical permeation of the tissues by blood, its extension may be affected by movement and gravity. Thus, bruising of the face can result from an injury to the scalp. Further difficulties arise if a bruise, as it extends, tracks along tissue planes from an invisible to a visible location. Bruising of this kind may not become apparent externally for some time and then some distance from the site of the original impact. This delay in the appearance of bruising is of considerable significance because absence of apparent injury at an initial examination is not necessarily inconsistent with bruising becoming apparent 24–48 hours later. Thus, in cases of serious assault, it is often advisable to conduct a further examination a day or so later.

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Fig. 4. Tramline bruising caused by a blow from a rod-like implement.

Generally, bruises, unless superficial and intradermal, tend to be nonspecific injuries, and it is usually not possible to offer any detailed opinions on the agent responsible. However, some bruises may have a pattern (a patterned bruise), or because of their shape or size or location, may have particular significance. Common patterning types include petechial bruising reproducing the texture of clothing, the ridge pattern from the sole of a shoe or tire, or the streaky linear purple bruising seen on the neck, wrists, or ankles caused by the application of a ligature. Beating with a rod-like implement often leaves a patterned bruise consisting of an area of central pallor outlined by two narrow parallel bands of bruising, so-called tramline bruising (see Fig. 4). Other bruises of particular medicolegal significance are the small circular or oval bruises, usually approx 1–2 cm in diameter, characteristic of fingertip pressure from either gripping or grasping with the hand, prodding with the fingers, or the firm impact of a knuckle. They may be seen on the limbs in cases of child abuse when the child is forcibly gripped by the arms or legs and shaken or on the abdomen when the victim is poked, prodded, or punched. However, such nonaccidental injuries must be differentiated from bruises seen on toddlers and children associated with normal activities, play, or sports. Bruises may be seen on the neck in cases of manual strangulation and are then usually associated with other signs of asphyxia. When sexual assault is alleged, the presence of bruising on the victim may help support the victim’s account and give an indication of the degree of violence that was used. For example, grip marks or “defense” injuries may be present on the upper arms and forearms, whereas bruising on the thighs and the inner sides of the knees may occur as the victim’s legs are forcibly pulled apart. Bruising of the mouth and lips can be caused when an assailant places a hand over the face to keep the victim quiet. Love bites (“hickeys”) may be present often in the form of discrete areas of ovoid petechial bruising on the neck and breasts. However, it is important to recognize that the latter may be the sequelae of consensual sexual encounters.

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Fig. 5. Production of an abrasion.

3.2. Abrasions An abrasion (or a graze) is a superficial injury involving only the outer layers of the skin and not penetrating the full thickness of the epidermis. Abrasions exude serum, which progressively hardens to form a scab, but they may also bleed because occasionally they are deep enough to breach the vascular papillae that corrugate the undersurface of the epidermis in which case frank bleeding may be present at an early stage. More superficial abrasions that barely damage the skin with little or no exudation of serum (and thus little or no scab formation) may be termed brush or scuff abrasions. Scratches are linear abrasions typically caused by fingernails across the surface of the skin. Pointed but noncutting objects may also cause linear abrasions and to differentiate them from fingernail scratches may be termed “point abrasions.” Abrasions often result from movement of the skin surface over a rough surface or vice versa (see Fig. 5). Thus they may have a linear appearance, and close examination may show ruffling of the superficial epidermis to one end, indicating the direction of travel of the opposing surface. Thus, a tangential blow could be horizontal or vertical, or it may be possible to infer that the victim had been dragged over a rough surface.

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Fig. 6. Laceration of the scalp.

The patterning of abrasions is clearer than that of bruises because abrasions frequently take a fairly detailed impression of the shape of the object causing them and, once inflicted, do not extend or gravitate; therefore, they indicate precisely the area of application of force. In manual strangulation, small, crescent-shaped abrasions caused by the fingernails of the victim or assailant may be the only signs visible on the neck. A victim resisting a sexual or other attack may claw at her assailant and leave linear parallel abrasions on the assailant’s face. Some abrasions may be contaminated with foreign material, such as dirt or glass, which may have important medicolegal significance. Such material should be carefully preserved for subsequent forensic analysis. In such cases, consultation with a forensic scientist can ensure the best means of evidence collection and preservation.

3.3. Lacerations Lacerations are caused by blunt force splitting the full thickness of the skin (see Fig. 6) most frequently when the skin and soft tissues are crushed between impacting force and underlying bone. Boxers classically develop lacerations when a boxing glove presses on the orbital rim. As with abrasions, the injury site is indicative of the impact site. Lacerations can bleed profusely, particularly on face and scalp. When inflicted deliberately, the force may cause the assailant and weapon to be contaminated with blood.

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Fig. 7. Cross-section of an incision.

Lacerations have characteristic features but often mimic incised wounds (or vice-versa), particularly where the skin is closely applied to underlying bone, for example, the scalp. Close examination of the margins of the wound, which are usually slightly inverted, normally resolves the issue. Lacerations are ragged wounds caused by crushing and tearing of the skin. They tend to gape open, and their margins are often bruised and abraded. Blood vessels, nerves, and delicate tissue bridges may be exposed in the depth of the wound, which may be soiled by grit, paint fragments, or glass. The shape of the laceration may give some indication regarding to the agent responsible. For example, blows to the scalp with the circular head of a hammer or the spherical knob of a poker tend to cause crescent-shaped lacerations. A weapon with a square or rectangular face, such as the butt of an axe, may cause a laceration with a Y-shaped split at its corners.

3.4. Incisions These wounds are caused by sharp cutting implements, usually bladed weapons, such as knives and razors, but sharp slivers of glass, the sharp edges of tin cans, and sharp tools, such as chisels, may also cause clean-cut incised injuries. Axes, choppers, and other similar instruments, although capable of cutting, usually cause lacerations because the injury caused by the size of the instrument (e.g., axe head) overrides the cutting effect of the tool. Mixed wounds are common, with some incised element, some laceration, bruising, and swelling and abrasion also present. Each element of the injury must be documented. Machetes and other large-blade implements are being used, producing large deep cuts known as slash or chop injuries. The features of an incision contrast with those of a laceration (see Fig. 7). The margins tend to be straight, unbruised, unabraded, and not inverted. They

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gape, and the deeper tissues are all cut cleanly in the same plane. Hemorrhage tends to be greater than from similarly located lacerations. If the blade of the weapon is drawn across the skin while it is lax, it may cause a notched wound if the skin creases. The direction of travel of the blade of the weapon is not always easy to decide, but usually the deeper part of the wound is near the end that was inflicted first, the weapon tending to be drawn away toward the end of the wound. The head and neck are usual targets when an assailant inflicts incised wounds. In an attempt to ward off the assailant, the arms are often raised in a protective gesture and incisions are then often seen on the ulnar borders of the forearms. If the blade of the weapon is grasped, then incised wounds are apparent on the palmar surfaces of the fingers. Such injuries are known as defense wounds. Incised wounds may be a feature of suicide or attempted suicide (see Subheading 3.6.). They are usually located on the wrists, forearms, or neck, although other accessible areas on the front of the body may be chosen. The incisions usually take the form of multiple parallel wounds, most of them being tentative and superficial; some may be little more than simple linear abrasions.

3.5. Stab Wounds Stab wounds are caused by sharp or pointed implements and wounds with a depth greater than their width or length. They are usually caused by knives but can also be inflicted with screwdrivers, pokers, scissors, etc. Although the external injury may not appear to be particularly serious, damage to vital structures, such as the heart, liver, or major blood vessels, can lead to considerable morbidity and death, usually from hemorrhage. In those individuals who survive, it is common for little information to be present about the forensic description of the wound because the priority of resuscitation may mean that no record is made. If operative intervention is undertaken, the forensic significance of a wound may be obliterated by suturing it or using the wound as the entry for an exploratory operation. In such cases, it is appropriate to attempt to get a forensic physician to assess the wound in theatre or subsequently. Stab wounds are rarely accidental and occasionally suicidal, but usually their infliction is a result of criminal intent. In the case of suicide, the wounds are usually located on the front of the chest or upper abdomen and, as with selfinflicted incisions, may be associated with several superficial tentative puncture wounds (see Subheading 3.6.). When deliberately inflicted by an assailant, stab wounds may be associated with defense injuries to the arms and hands. The appearance of the skin wound will vary depending on the weapon used and can easily be distorted by movement of the surrounding skin. Typi-

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A

B

C

Fig. 8. Elliptical (A), fish-tailed (B), and bruised ovoid (C) stab wounds.

cally, when inflicted with a knife, the wound is usually elliptical because the natural elasticity of the skin causes its length to shrink. If the blade is doubleedged, such as that of a dagger, the extremities of the wound tend to be equally pointed. A stab wound from a single-edged blade, such as a kitchen knife, will usually have one extremity rounded, squared-off, or fish-tailed (caused by the noncutting back of the blade). When blunt weapons are used—a pair of scissors, for example—the wound tends to be more rounded or oval, with bruising of its margins (see Fig. 8). Scissor wounds can sometimes have a cross-shape caused by the blade screws or rivets. Notched wounds are often caused by the blade of the weapon being partially withdrawn and then reintroduced into the wound or twisted during penetration. It is rarely possible from an inspection of the skin wound alone to comment usefully on the width of the blade because the skin retracts and the knife is unlikely to have been introduced and removed perfectly perpendicularly. Surprisingly, long skin wounds may be caused with quite narrow-width blades.

3.6. Deliberate Self-Harm Deliberate self-harm refers to any attempt by an individual to harm himself or herself. When assessing injuries, it is important to understand which factors may indicate the possibility that an injury was caused by deliberate

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Table 4 Indicators of Possible Deliberate Self-Harm Injuries • • • • • • •

Must be on an area of body accessible to the person to injure themselves. Superficial or minor. Regular with an equal depth at the beginning and end (for cuts). Regular and similar in style or shape (for scratches, burns, etc.). Multiple. Parallel or grouped together. In right-handed persons, the injuries are predominantly on the left side (and the converse for left-handed individuals). • There may be lesser injuries where initial attempts at self-harm are made (tentative scars). • There may be old scars of previous self-harm. • There may be a psychiatric history. From ref. 2.

self-harm. Individuals injure themselves for numerous reasons, including psychiatric illness and others, such as attempting to imply events took place that did not or for motives of gain. Self-inflicted injuries have several characteristics, which are not diagnostic but that together may give an indication of selfinfliction. Table 4 lists features that may assist in the recognition or suspicion that cuts or other injury, such as scratches, are self-inflicted—all or some may be present—their absence does not preclude self-infliction nor does their presence necessarily imply self-infliction (2).

4. FIREARM INJURIES The examination of fatal firearm injuries should be left to an experienced forensic pathologist; however, it is not unusual in cases of nonfatal injuries for a hospital clinician or forensic physician to be asked to comment on the nature of the wound or wounds (8). As with all injuries within the forensic setting it is essential in these nonfatal cases that the initial appearances of the injuries be accurately described and the wounds photographed. This is particularly important because subsequent surgical treatment may distort or completely obliterate the wound characteristics. Furthermore, any fragments, bullets, or pellets found within the wounds must be carefully removed and handed over to the appropriate authorities. There are two main types of firearm: smooth bore and rifled. Injuries occurring from both are discussed in the following subheadings.

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Fig. 9. Components of a shotgun cartridge (A) and a rifled bullet (B).

4.1. Smooth-Bore Weapons Shotguns, which fire a large number of small projectiles, such as lead shot, are the most common type of smooth-bore weapons. They are commonly used in sporting and agricultural activities and may be either single or doublebarreled. The ammunition for these weapons consists of a plastic or cardboard cartridge case with a brass base containing a percussion cap. Inside the main part of the cartridge is a layer of propellant, plastic, felt, or cardboard wads and a mass of pellets (lead shot of variable size) (see Fig. 9A). In addition to the pellets, the wads and/or cards may contribute to the appearance of the wounds and may be important in estimating range and possible direction.

4.2. Rifled Weapons Rifled weapons are characterized by having parallel spiral projecting ridges (or lands) extending down the interior of the barrel from the breach to the muzzle. This rifling causes the projectile, in this case a bullet (see Fig. 9B), to spin as it is ejected from the weapon and thus impart gyroscopic stability along its flight path. The rifling also leaves characteristic scratches and rifling marks that are unique to that weapon on the bullet surface. There are three common types of rifled weapons: the revolver, the pistol, and the rifle. The

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revolver, which tends to have a low muzzle velocity of 150 m/s, is a shortbarreled weapon with its ammunition held in a metal drum, which rotates each time the trigger is released. The spent cartridge case is retained within the cylinder after firing. In the self-loading pistol, often called “semi-automatic” or erroneously “automatic,” the ammunition is held in a metal clip-type magazine under the breach. Each time the trigger is pulled, the bullet in the breach is fired, the spent cartridge case is ejected from the weapon, and a spring mechanism pushes up the next live bullet into the breach ready to be fired. The muzzle velocity of pistols varies between 300 and 360 m/s. The rifle is a long-barreled shoulder weapon capable of firing bullets with velocities up to 1500 m/s. Most military rifles are “automatic,” allowing the weapon to continue to fire while the trigger is depressed until the magazine is empty; thus, they are capable of discharging multiple rounds within seconds.

4.3. Shotgun Wounds When a shotgun is discharged, the lead shot emerges from the muzzle as a solid mass and then progressively diverges in a cone shape as the distance from the weapon increases. The pellets are often accompanied by particles of unburned powder, flame, smoke, gases, wads, and cards, which may all affect the appearance of the entrance wound and are dependent on the range of fire. Both the estimated range and the site of the wound are crucial factors in determining whether the wound could have been self-inflicted. If the wound has been sustained through clothing, then important residues may be found on the clothing if it is submitted for forensic examination. It is absolutely essential that the advice of the forensic science team and crime scene investigator is sought when retrieving such evidence. When clothing is being cut off in the hospital, staff should avoid cutting through any apparent holes. Contact wounds are caused when the muzzle of the weapon is held against the skin. The entrance wound is usually a fairly neat circular hole, the margins of which may be bruised or abraded resulting from impact with the muzzle. In the case of a double-barreled weapon, the circular abraded imprint of the nonfiring muzzle may be clearly seen adjacent to the contact wound. The wound margins and the tissues within the base of the wound are usually blackened by smoke and may show signs of burning owing to the effect of flame. Because the gases from the discharge are forced into the wound, there may be subsidiary lacerations at the wound margin, giving it a stellate-like shape. This is seen particularly where the muzzle contact against the skin is tight and the skin is closely applied to underlying bone, such as in the scalp. Carbon monoxide contained within the gases may cause the surrounding skin and soft

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revolver, which tends to have a low muzzle velocity of 150 m/s, is a shortbarreled weapon with its ammunition held in a metal drum, which rotates each time the trigger is released. The spent cartridge case is retained within the cylinder after firing. In the self-loading pistol, often called “semi-automatic” or erroneously “automatic,” the ammunition is held in a metal clip-type magazine under the breach. Each time the trigger is pulled, the bullet in the breach is fired, the spent cartridge case is ejected from the weapon, and a spring mechanism pushes up the next live bullet into the breach ready to be fired. The muzzle velocity of pistols varies between 300 and 360 m/s. The rifle is a long-barreled shoulder weapon capable of firing bullets with velocities up to 1500 m/s. Most military rifles are “automatic,” allowing the weapon to continue to fire while the trigger is depressed until the magazine is empty; thus, they are capable of discharging multiple rounds within seconds.

4.3. Shotgun Wounds When a shotgun is discharged, the lead shot emerges from the muzzle as a solid mass and then progressively diverges in a cone shape as the distance from the weapon increases. The pellets are often accompanied by particles of unburned powder, flame, smoke, gases, wads, and cards, which may all affect the appearance of the entrance wound and are dependent on the range of fire. Both the estimated range and the site of the wound are crucial factors in determining whether the wound could have been self-inflicted. If the wound has been sustained through clothing, then important residues may be found on the clothing if it is submitted for forensic examination. It is absolutely essential that the advice of the forensic science team and crime scene investigator is sought when retrieving such evidence. When clothing is being cut off in the hospital, staff should avoid cutting through any apparent holes. Contact wounds are caused when the muzzle of the weapon is held against the skin. The entrance wound is usually a fairly neat circular hole, the margins of which may be bruised or abraded resulting from impact with the muzzle. In the case of a double-barreled weapon, the circular abraded imprint of the nonfiring muzzle may be clearly seen adjacent to the contact wound. The wound margins and the tissues within the base of the wound are usually blackened by smoke and may show signs of burning owing to the effect of flame. Because the gases from the discharge are forced into the wound, there may be subsidiary lacerations at the wound margin, giving it a stellate-like shape. This is seen particularly where the muzzle contact against the skin is tight and the skin is closely applied to underlying bone, such as in the scalp. Carbon monoxide contained within the gases may cause the surrounding skin and soft

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tissues to turn pink resulting from the formation of carboxyhemoglobin. Contact wounds to the head are particularly severe, usually with bursting ruptures of the scalp and face, multiple explosive fractures of the skull, and extrusion or partial extrusion of the underlying brain. Most contact wounds of the head are suicidal in nature, with the temple, mouth, and underchin being the sites of election. In these types of wounds, which are usually rapidly fatal, fragments of scalp, skull, and brain tissue may be dispersed over a wide area. At close, noncontact range with the muzzle up to about 15 cm (6 in) from the skin, the entrance wound is still usually a single circular or oval hole with possible burning and blackening of its margins from flame, smoke, and unburned powder. Blackening resulting from smoke is rarely seen beyond approx 20 cm; tattooing from powder usually only extends to approx 1 m. The wads and cards rarely travel more than approx 2 m. As distance increases, the pellets begin to diverge. Up to approx 1 m they are still traveling as a compact mass, but between approx 1–3 m, the pellets start to scatter and cause variable numbers of individual satellite puncture wounds surrounding a larger central hole. At ranges greater than 8–10 m, there is no large central hole, only multiple small puncture wounds, giving the skin a peppered appearance. Exit wounds are unusual with shotgun injuries because the shot is usually dispersed in the tissues. However, the pellets may penetrate the neck or a limb and, in close-range wounds to the head, the whole cranium may be disrupted.

4.4. Rifled Weapon Wounds Intact bullets penetrating the skin orthogonally, that is, nose-on, usually cause neat round holes approx 3–10 mm in diameter. Close examination reveals that the wound margin is usually fairly smooth and regular and bordered by an even zone of creamy pink or pinkish red abrasion. A nonorthogonal nose-on strike is associated with an eccentric abrasion collar, widest at the side of the wound from which the bullet was directed (see Fig. 10). Atypical entrance wounds are a feature of contact or near contact wounds to the head where the thick bone subjacent to the skin resists the entry of gases, which accumulate beneath the skin and cause subsidiary lacerations to the wound margins, imparting a stellate lacerated appearance. Contact wounds elsewhere may be bordered by the imprint of the muzzle and the abraded margin possibly charred and parchmented by flame. Punctate discharge abrasion and sooty soiling are usually absent from the skin surface, but the subcutaneous tissues within the depth of the wound are usually soiled. The effects of flame are rarely seen beyond 10 cm (4 in), with sooty soiling extending to approx 20 cm (8 in).

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A

B

Fig. 10. Entrance wounds caused by perpendicular (A) and tangential (B) bullet strikes.

Punctate discharge abrasions, which may be particularly heavy with old revolver ammunition, are often present at ranges up to approx 50 cm (20 in). It is important to remember that sooty soiling of the skin surrounding a wound is easily removed by vigorous cleaning carried out by medical or nursing staff. The soiling of contact close-range entrance wounds may be absent if clothing or other material is interposed between the skin surface and the muzzle of the weapon. Bullet exit wounds tend to be larger than entrance wounds and usually consist of irregular lacerations or lacerated holes with everted, unabraded, and unbruised margins. When the skin at the site of an entrance wound has been supported by tight clothing, eversion of the margins of the wound may be absent and the margins may even be abraded, albeit somewhat irregularly, but nevertheless making differentiation from entrance wounds more difficult. Entrance wounds caused by damaged or fragmented bullets may be so atypical that it may not be possible to offer a useful opinion as to their nature. It is inappropriate to offer an opinion on the caliber of a bullet based on the size of an entrance wound, and it is not possible to state whether the bullet was fired from a revolver, pistol, or rifle by only the appearance of the wound.

5. DEFENSE INJURIES Certain types of injuries may be described as defense injuries. These injuries typically are seen when an individual has tried to defend himself or herself against an attack and are the result of instinctive reactions to assault. Some

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individuals, for example, the very young and the very old, are less capable of offering much defense against the perpetrators of assault. When attacked with blunt objects, most individuals will attempt to protect their eyes, head, and neck by raising their arms, flexing their elbows, and covering their head and neck. As a result, the exposed surfaces of the arms become the impact point for blows. Thus, the extensor surface of the forearms (the ulnar side), the lateral/ posterior aspects of the upper arm, and the dorsum of the hands may receive blows. Similarly, the outer and posterior aspects of lower limbs and back may be injured when an individual curls into a ball, with flexion of spine, knees, and hips to protect the anterior part of the body. In sharp-blade attacks, the natural reaction is to try and disarm the attacker, often by grabbing the knife blade. This results in cuts to the palm and ulnar aspect of the hand. Occasionally, the hands or arms may be raised to protect the body against the stabbing motion, resulting in stab wounds to the defense areas. In blunt-force attacks, the injuries sustained usually take the form of bruises if the victim is being punched or kicked, but there may also be abrasions and/or lacerations depending on the nature of the weapon used. If the victim is lying on the ground while being assaulted, he or she will tend to curl up into a fetal position to protect the face and the front of the trunk, particularly from kicks. In these circumstances, defensive bruising is likely to be seen on other surfaces of the trunk and limbs. The absence of defense injuries in persons otherwise apparently capable of defending themselves against an assault may be particularly significant if it is believed that other injuries found on the victim could have been selfinflicted or if it is believed that they were incapacitated through alcohol, drugs, or other injury.

6. TORTURE The World Medical Association’s Declaration of Tokyo in 1975 defined torture as “the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to make a confession, or for any other reason” (9). The declaration also established guidelines for doctors when faced with cases of suspected torture. Clinicians view torture in two main contexts: first, torture that is perpetrated by criminals and terrorist organizations, and second, torture that is carried out, or allegedly carried out, by the police or other security force personnel during the detention and interrogation of prisoners and suspects. Nonjudicial justice is now meted out worldwide in several ways.

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Criminal groups and paramilitary organizations may torture their captives for numerous reasons. It may be to extract information from an opposing gang or faction, to discipline informants and others engaged in unsanctioned criminal activity, or simply to instill fear and division within a community. The methods used are crude and barbaric. The victim is usually bound, blindfolded, and gagged, and the wrists and ankles may bear the pale streaky linear bruises and abrasions caused by ligatures. “Beating up” is typical, with extensive bruises and abrasions scattered on the head, trunk, and limbs. Black eyes, fractures of the nose and jaws, and dislodgment of the teeth are all fairly typical. Cigarette burns, usually seen as discrete circular areas of reddish-yellow, parchmented skin, are also quite common. Patterned injuries resulting from being struck with the butt of a gun or tramline bruising owing to blows with a truncheon or baseball bat may be seen; in Northern Ireland, shooting through the lower limbs (“knee-capping”) is a favored method of punishment by paramilitary organizations. Systematic torture by security personnel, usually during interrogation of suspects, ranges from the subtle use of threats and intimidation to physical violence. Hooding, prolonged standing, and the use of high-pitched sound have all been used, as have attempts to disorientate prisoners by offering food at erratic times, frequent waking up after short intervals of sleep, and burning a light in the cell 24 hours a day. Physical abuse includes beating of the soles of the feet, so-called falanga, which, although extremely painful and debilitating, does not usually cause any significant bruising. Repeated dipping of the victim’s head under water, known as submarining, may prove fatal if prolonged, as can the induction of partial asphyxia by enveloping the head in a plastic bag. Electric torture is well documented and carries the risk of local electric shocks and fatal electrocution. Telefono, as it is known in Latin America, consists of repeated slapping of the sides of the head by the open palms, resulting in tympanic membrane rupture. Doctors who have access to prisoners in custody have a heavy responsibility to ensure that they are properly treated during detention and interrogation. In all cases of suspected or alleged ill-treatment of prisoners, it is essential that the doctor carry out a methodical and detailed “head-to-toe” examination. All injuries and marks must be accurately recorded and photographed, and the appropriate authorities must be informed immediately. Increasingly, forensic physicians are involved in assessments of refugees and asylum seekers to establish whether accounts of torture (both physical and psychological) are true. This role is likely to expand in the future, and the principles of independent assessment, documentation, and interpretation are, as with other

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areas discussed, vital in ensuring that courts and tribunals have the appropriate information to allow fair judgments to be reached (1).

7. BITE MARK INJURIES 7.1. Introduction The term bite mark has been described as “a mark caused by the teeth alone, or teeth in combination with other mouth parts” (10). Biting is a dynamic process, and bite marks are complex injuries. Recognition, recording, analysis, and interpretation of these injuries are the most intriguing challenges in forensic dentistry. Biting can establish that there has been contact between two people—the teeth being used for offense or defense. When individual tooth characteristics and traits are present in the dentition of the biter and are recorded in the biting injury, the forensic significance of the bite mark is greatly increased. Early involvement of the forensically trained dentist, with experience in biting injuries, is essential to ensure that all dental evidence from both the victim and any potential suspect(s) is appropriately collected, preserved, and evaluated. There may be insufficient evidence to enable comparisons to be made with the biting edges of the teeth of any particular person, but, if the injury can be identified as a human bite mark, it may still be significant to the investigation. It is important that the forensic dentist discusses with investigators the evidential value of the bite mark to enable resources to be wisely used. Clearly, conclusions and opinions expressed by the forensic dentist often lead him or her into the role of the expert witness subject to rigorous examination in court. The forensic physician will mostly be involved with biting injuries to human skin and any secondary consequences, including infection and disease transmission, but should be aware that bites in foodstuffs and other materials may be present at a crime scene and be easily overlooked. It is essential that a human bite can be distinguished from an animal bite, thus exonerating (or incriminating) the dog or cat next door. The following sections will consider issues surrounding bites to human skin caused by another human. Early recognition of a patterned injury (suspected of being caused by biting) by medical personnel, social services, and other investigating agencies is extremely important; the injury may be the only physical evidence and must not be lost. Ideally, the forensic dentist should be contacted sooner rather than later when a possible biting injury is discovered to ensure that all evidence is collected appropriately. All too often the dentist is brought in at a later date, when there has been incorrect recording of the bite mark and the injury is partly healed and distorted or fully healed and no longer visible. Reliance may then have to be placed on ultraviolet photography to demonstrate the “lost” injury (11).

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Bites can be found on the victim or the assailant (living, deceased, child, or adult). It is well known that biting is often a feature in nonaccidental injury to children (see Chapter 5). We must all beware of the so-called “amorous” bite and self-inflicted bite. If a bite mark is found on an anatomical site that is accessible to the victim, it becomes necessary to exclude him or her from the investigation.

7.2. Bite Mark Information 7.2.1. Initial Considerations 1. Is it a biting injury? 2. Is it human? 3. What should I do?

If the answer to the first question is “don’t know,” “possibly,” or “yes,” then request the assistance of the forensic dentist. Ensure that swabs are taken from the injured site (with controls) and photographs should be taken. Make sure that you know which forensic dentists are available in your area; this will prevent delays and frustration. You will need to know whether your local forensic dentist has experience and training in bite mark-analysis or whether he or she focuses mainly on identifications. The forensic dentist will examine the suspected biting injury and consider the following: • Whether the injury is oval or round. • Whether the injury has central sparing or discoloration from suction or nipping between teeth. • Whether the mark is made by two dental arches. However, note that a mark from only one arch does not mean that it is not a biting injury. • Are marks made by individual teeth within the dental arch clearly visible? • If so, is detail of that individual tooth visible? Characteristics, such as tooth size, shape, displacement, rotations, wear facets, etc. will be considered. Individual tooth absences from the arch will be noted. • Is there sufficient detail for comparisons to be made with the biting edges of the teeth of any particular person or persons? • Does the appearance of the injury fit the alleged time frame of the incident?

7.2.2. Differential Diagnosis It is important to remember that other injuries can mimic bite marks. The following have all been queried as biting injuries: • Dermatological conditions. • Marks made by electroencephalogram electrodes. • Heel marks.

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• Patterned door knobs. • Burns.

7.2.3. Range of Bite Mark Appearance • • • • •

Erythema. Laceration. Bruising. Avulsion of tissue. Abrasion.

In a single bite mark, one or any combination of several or all of these components may be present, and they may be discrete or superimposed. Furthermore, scrape marks made by tooth movement over the skin may be present. However, the complex situation may become even more complicated when there are multiple bite marks at a single location where they may overlap as a result of the biter trying to get a better “grip;” all this leads to interpretation difficulties.

7.2.4. Helpful Information From Bitten Person (When Possible) • • • • • •

When were they bitten? How many bites were there? What was the victim’s position? What was the assailant’s position? Has the injury been washed? Was the victim clothed over the bitten area? • Did the victim bite the assailant?

In attempting to get answers to these questions, a clearer picture of the incident may develop.

7.2.5. Anatomical Distribution of Bitten Sites It can be seen from the anatomical distribution of the bite marks studied by the author (see Fig. 11) that no part of the body is spared. This graph does not distinguish between male and female, child or adult, or whether there were multiple bites to one person, but serves purely to illustrate that it is essential for medical personnel to thoroughly examine the body for biting injuries and carefully document the findings. Record the anatomical location and nature of the injury and its size, shape, and color. However, photographic documentation is essential for bite mark analysis. In many cases, there are multiple bite marks on the body, some that the victim may not be aware of or recall. Multiple bite marks on the body, produced by the same perpetrator, may vary

Fig. 11. Anatomical distribution of last 110 bite marks studied by the author (Hinchliffe).

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considerably in appearance depending on several factors; these include the site bitten, number of teeth involved, thickness of the skin, elasticity of the skin, force involved, relative movement between biter and victim, etc.. In short, do not jump to the conclusion that there are multiple biters or vice-versa. Nor should it be assumed that a small biting injury has been caused by a child; it may be an incomplete adult bite. Where bruising is diffuse or confluent, size is not always easy to determine. If the marks on the skin can be identified as being made by the smaller deciduous (baby) teeth, it would suggest the mark has been inflicted by a young child. It is widely appreciated that it is easy to miss bruising on dark skins.

7.3. Evidence Collection As soon as it has been established that the injury has been caused by biting, the injury should be photographed and swabbed for saliva. In addition, it may be necessary to take an impression of the injured site to preserve any possible indentations. Clearly, the taking of forensic samples is not always possible when the injured party needs urgent medical attention. Often, the forensic dentist is provided with photographs taken some time after the incident date and after medical intervention (see Fig. 12); by this time dental evidence has been lost, but it may still be possible to identify the injury as a possible biting injury.

7.3.1. Saliva Saliva is deposited on the skin (and clothing, if present) during biting and sucking. The quantity and quality of this may enable DNA analysis after swabbing of the unwashed injury site. The double-swab technique is effective for this procedure (12). Please note that salivary DNA has been reported as having been recovered from the bitten breast of a young deceased woman found submerged in water (13). The saliva swabs (with controls) must be clearly and correctly labeled and stored appropriately (see Chapter 3). Oral saliva samples will be needed from any potential suspect, and the victim of an assault if there is a possibility that the victim bit the assailant (or self-infliction is suspected).

7.3.2. Photography Photographs should be taken when the bite mark is first discovered. It is essential for correct photographic procedures to be followed to minimize distortions. Police photographers experienced in crime scene and other injury photography may still find the assistance of the forensic dentist useful, because

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Fig. 12. Photograph showing biting injury to right ear after medical intervention. © Northumbria Police. Used with permission.

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complications arise from curved surfaces and the correct positioning of the camera and scales. The American Board of Forensic Odontology no. 2 scale, being small and “L” shaped, is very effective (14) and is now used by many police forces. Skin is not the best impression material, and various papers and reports have shown the importance of photographing the victim in the same position as when bitten in an attempt to minimize distortion (15,16). However, this is not always possible. Changes in the injury with time (in both the living and the deceased) may mean that the injury pattern appears clearer after a day or two. There is no reliable way of knowing when an injury will reveal the most detail, and, therefore, repeat photography (e.g., every 24 hours for 3–5 days) can prove useful.

7.3.3. Photograph Protocol • Anatomical location of bite mark (and identification of bitten person). • Victim in same position as when bitten (when possible). • Close up of bite mark without scales (nothing is being hidden) in color and black and white (in addition, black and white with a green filter may be useful). • Close up of bite mark with scales in color and black and white (in addition, black and white with a green filter may be useful). Scales should be close to injury but not so close as to obscure the injury. Note: scales should be in the same plane as the bite mark. • Photograph with the scales and injury parallel to the film plane (right angles to injury). • Each dental arch may need to be photographed separately when on a curved surface. • Repeat at intervals. • Consider ultraviolet photography for older injuries that may no longer be visible.

Ultimately, the forensic dentist will select the best photographs and have them reproduced to life-size (1:1) for analysis and comparison work. At the time of writing, conventional film photography is still widely used, but the use of digital photography is progressing rapidly. Whatever the future brings, it is essential that standards, protocols, and appropriate training are in place.

7.3.4. Dental Impressions Dental impressions taken from the potential biter by the dentist (or appropriately qualified person) after a thorough dental examination will be cast into hard dental models. Dental impressions taken of an individual in custody are intimate samples and require the appropriate authority and consent for your jurisdiction. Transparent overlays of the biting edges of the

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Fig. 13. Photograph showing bite mark on back, with scales. Individual tooth detail is visible. © Northumbria Police. Used with permission.

teeth from the dental models will be produced to facilitate physical comparisons. Currently, the best method for overlay production to achieve accuracy and reproducibility is the computer-generated method (17). The importance of following the correct procedures for evidence documentation, collection, preservation, and storage with continuity of evidence cannot be overstressed.

7.4. Summary The biting injury demonstrating plenty of detail (see Fig. 13) that has been carefully examined, recorded, analyzed, and interpreted can be useful to the justice system. It can establish contact between two people or, of equal importance, exclude an innocent party. Early suspicion and recognition by personnel involved with the investigation, followed by prompt and appropri-

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ate action, will help maximize the opportunity to collect evidence. Awareness by all concerned and early referral to the forensically trained dentist with experience in this field promote teamwork and best practice.

REFERENCES 1. Peel, M., Iacopino, V. The Medical Documentation of Torture. Greenwich Medical Media, London, UK, 2002. 2. Payne-James, J. J. Assault and injury. In: Payne-James J. J., Busuttil A., Smock W., eds. Forensic Medicine: Clinical & Pathological Aspects. Greenwich Medical Media, London, UK, 2003, pp. 543–563. 3. Payne-James, J. J., Wall, I. Forensic Medical Notebook. Greenwich Medical Media, London, UK, 2001. 4. Irvine, A. J. Incisions are not lacerations. Br. Med. J. 325:1113–1114, 2002. 5. Langlois, N. E. I., Gresham, G. A. The ageing of bruises: a review and study of the color changes with time. Forensic Sci. Int. 50:227–238, 1991. 6. Stephenson, T., Bialas, Y. Estimation of the age of bruising. Arch. Dis. Child. 74:5– 55, 1996. 7. Munang, L. A., Leonard, P. A., Mok, J. Y. Q. Lack of agreement on color description between clinicians examining childhood bruising. J. Clin. Forensic Med. 9:171– 174, 2002. 8. Dana, S., DiMaio, V. J. M. Gunshot trauma. In: Payne-James J. J., Busuttil A., Smock W., eds. Forensic Medicine: Clinical & Pathological Aspects. Greenwich Medical Media, London, UK, 2003, pp. 149–168. 9. British Medical Association. Report of a Working Party. Medicine Betrayed. British Medical Association, London, UK, 1992. 10. MacDonald, D. G. Bite mark recognition and interpretation. J. Forensic Sci. Soc. 14: 229–233, 1974. 11. David, T. J., Sobel, M. N. Recapturing a five-month-old bite mark by means of reflective ultraviolet photography. J. Forensic Sci. 39:1560–1567, 1994. 12. Sweet, D., Lorente, J. A., Lorente, M., Valenzuela, A., Villanueva, E. An improved method to recover saliva from human skin: the double swab technique. J. Forensic Sci. 42:320–322, 1997. 13. Sweet, D., Shutler, G. Analysis of salivary DNA evidence from a bite mark on a body submerged in water. J. Forensic Sci. 44:1069–1072, 1999. 14. Hyzer, W. G., Krauss, T. C. The bite mark standard reference scale—ABFO No. 2. J. Forensic Sci. 33:498–506, 1988. 15. DeVore, D. T. Bite marks for identification? A preliminary report. Med. Sci. Law. 11:144–145, 1971. 16. Barbenel, J. C., Evans, J. H. Bite marks in skin—mechanical factors. J. Forensic Sci. Soc. 14:235–238, 1974. 17. Sweet, D., Bowers, C. M. Accuracy of bite mark overlays: a comparison of five common methods to produce exemplars from a suspect’s dentition. J. Forensic Sci. 43:362–367, 1998.

Nonaccidential Injury in Children

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Nonaccidental Injury in Children Amanda Thomas 1. INTRODUCTION Nonaccidental injury (NAI) is a common condition in children and carries a significant morbidity and mortality. Doctors have an important role in recognizing, assessing, and managing children with suspected NAI.

1.1. Definition Child abuse is difficult to define, and although many definitions exist in the legal and scientific literature, there is no consensus on an absolute definition. Issues that arise in the debate include the influence and attitudes of societies, cultural differences in child rearing, politics, and religious beliefs. In addition, there is a need to examine the factors involved in particular episodes, the context in which the episodes occurred, the opinion of the professionals who are describing or judging these episodes, the current knowledge of the long-term outcomes of particular behaviors to children, and the effectiveness of current interventions. However, definitions are important because they provide a general framework for policy setting, statutory and legal interventions, gathering statistical information, and an understanding of current and future research. The UK Children Act (1) and the Federal Child Abuse Prevention and Treatment Act (2) (CAPTA) define a child as: “a person under the age of eighteen years.” (In cases of sexual abuse, CAPTA refers to the age specified by the child protection law of the state in which the child resides.) From: Clinical Forensic Medicine: A Physician’s Guide, 2nd Edition Edited by: M. M. Stark © Humana Press Inc., Totowa, NJ 159

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Working Together to Safeguard Children 1999 (3) describes the abuse and neglect of a child as: “Somebody inflicting harm or failing to act to prevent harm” and physical abuse as: “Hitting, shaking, throwing, poisoning, burning or scalding, drowning, suffocating or otherwise causing physical harm to a child including when a parent or carer feigns the symptoms of, or deliberately causes ill-health to a child whom they are looking after, termed Fabricated or Induced Illness (FII).” In the United States, each state is responsible for providing its own definitions of child abuse and neglect within the civil and criminal codes, but the operational definition of physical abuse (CAPTA) (2) is as follows: “Physical abuse is characterized by the infliction of physical injury as a result of punching, beating, kicking, biting, burning, shaking or otherwise harming a child. The parent or caretaker may not have intended to hurt the child; rather, the injury may have resulted from over-discipline or physical punishment.”

1.2. Effects of Child Abuse There is extensive literature on the effects of child abuse. It is generally accepted that child abuse carries a significant mortality and morbidity with consequences that include the following: • • • • • •

Death or disability in severe cases. Affective and behavior disorders. Developmental delay and learning difficulties. Failure to thrive and growth retardation. Predisposition to adult psychiatric disorders. An increased risk of the abused becoming an abuser.

In Gibbons et al.’s study (4) of 170 children, an attempt was made to disentangle the effect of the abuse from the contributing circumstances and the results of intervention. The authors found that 10 years after diagnosis, abused children were more likely to show behavior problems at home and at school, had greater difficulties with friendships, and scored lower on certain cognitive tests. There was evidence that persistent abuse, a combination of different kinds of abuse, or abuse and neglect together had a poorer prognosis. Isolated incidents of physical abuse in the context of a nonviolent family and in the absence of sexual abuse or neglect did not necessarily lead to poor long-term outcomes for children. What has emerged from this research has been the importance of the style of parenting in families: children exposed to a harshly punitive, less reliable, and less warm environments are the children with the poorest outcomes.


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1.3. Risk Factors for Abuse The picture of child abuse is complex, with social, psychological, economic, and environmental factors all playing a part. Often there is evidence of family stress followed by a triggering event leading to abuse. Newberger (5) pinpointed the following three categories of predisposing family stress: 1. Child factors—disability, learning difficulties, behavior problems, adoption. 2. Parental factors—mental health problems, alcohol or drug abuse, domestic violence, previous abuse as a child. 3. Sociosituational factors—single parent, young parent, new partner, poverty, unemployment.

Gibbons et al. (6) studied children on the child protection registers in England and Wales (that is, children identified by agencies as at risk for significant harm and for whom a child protection plan had been developed) and found that domestic violence was recorded in more than one-fourth of cases. A substantial minority of parents had histories of mental illness, criminal behavior, or substance abuse. Substance abuse is more common worldwide and is associated with an elevated risk of neglect in the children of substanceabusing parents. Children with disabilities are at greater risk of becoming victims of abuse and neglect than children without disabilities, estimated at 1.7 times greater, with physical abuse 1.6 times more likely (7). The harmful effect of socioeconomic deprivation on children is well established. Poverty is associated with postnatal and infant mortality, malnutrition and ill health, low educational attainment, delinquency, teenage pregnancy, and family tension and breakdown. Parental stress leads to greater vulnerability of the children, and common stress factors include unemployment and debt, which are linked to poverty. Abuse occurs throughout all social classes, but children from the most disadvantaged sectors of society are brought to the attention of child protection agencies more frequently (8) than those from nondisadvantaged sectors.

1.4. Extent of Abuse The true prevalence of child abuse is difficult to determine in all countries. Official estimates will only represent a fraction of the total number of cases, because many go unreported or unrecognized, and information systems are incomplete or track just one limited part of the picture. In the United States, the referral rate for child abuse investigations is three times higher than in the United Kingdom, and twice as many children are in state care, with four times as many child abuse deaths (9). In the United Kingdom, child protection registers hold statistical information on children identified by agencies as at risk of significant harm and for

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whom a child protection plan has been developed. However, these figures record professional activity and the numbers of children registered, not the numbers of children who have been abused. They exclude cases where abuse has occurred but the child is otherwise protected or no longer at risk, cases where abuse has not been recognized, or cases where the child has not been registered but may still be subject to abuse. In 2002, there were 23 children per 10,000 aged less than 18 years on the child protection register, and 19% were registered under the category of physical injury, the second most frequent type of maltreatment (10). The 2001 annual statistics on child maltreatment from state child protective services (CPS) agencies in the United States revealed a victimization rate of 12.4 per 1000 children in the population (19% suffered physical abuse) and a child fatality rate of 1.81 children per 100,000 children in the population (11). Neglect is the most common category of registration or type of maltreatment in both the United Kingdom and the United States.

2. NONACCIDENTAL INJURY IN CHILDREN NAI in children (physical abuse or battering) includes injuries that result from deliberate actions against the child or failure to prevent injury occurring to the child. The spectrum of injury includes the following: • • • • •

Soft tissue injury. Thermal injury. Skeletal injury. Internal injuries (brain, abdomen, or eye). Fabricated or induced illness (Munchausen syndrome by proxy, factitious illness).

The range of NAI extends from minor (e.g., bruising) to fatal, and younger infants are at risk of more serious injuries. Different types of abuse overlap. Physical abuse will often coexist with emotional abuse. Injury may occur in the context of neglect, such as leaving a child unsupervised and exposed to dangerous situations. Physically abused children are at increased risk of sexual abuse. Hobbs and Wynne (12) found that 1 in 6 of 769 physically abused children and 1 in 7 of 949 sexually abused children had suffered both forms of abuse.

2.1. Role of the Physician Physicians have a duty (a legal duty in countries, such as the United States and Australia) to recognize and report suspected abuse to the statutory investigative agencies. Physicians need to work together with statutory agen-


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cies and have an awareness and understanding of other agencies’ roles and responsibilities. Physicians should be aware of current guidance on accountability and confidentiality produced by their professional bodies. Physicians may be involved in a range of child protection activities, including the following: • • • • • • •

Recognition, diagnosis, and treatment of injury. Joint interagency activity. Court attendance. Ongoing care and monitoring of children following suspected abuse. Support for families and children. Prevention. Teaching, training, supervision, and raising awareness.

2.2. Assessing the Nonaccidentally Injured Child For the physician faced with the assessment of a child for suspected physical injury, the following points should be remembered: • • • •

Physical abuse often overlaps with other forms of abuse. Abuse may involve other siblings and family members. Abuse may recur and escalate. Younger children and infants are more at risk of physical injury and death than older children. • The aim of recognition and early intervention is to protect the child, prevent mortality and morbidity, and diagnose and improve disordered parenting. • Early intervention in families may prevent more serious abuse and subsequent removal of children into care. • The medical examination is important, but it is only one part of the wider assessment of the child and family.

A recommended approach to the pediatric assessment is as follows: 1. Obtaining background information from professionals, e.g., social worker or police officer, if accompanying the family, or by telephone before the assessment. 2. Full pediatric history from the parent/caregiver and child. Remember to document the responses and the questions asked and any spontaneous disclosures. 3. Assessment of the “whole child,” including: • Growth plotted on a percentile chart. • Development: is this child developmentally capable of what has been described? Is this child’s developmental delay part of a wider picture of abuse or neglect? • A description of the child’s demeanor and behavior: is the child’s behavior normal for age?

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4. 5. 6. 7. 8.

9.

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Thomas • Full physical examination, including genitalia and anus. • Description of injuries: types of lesions, sites, sizes, shapes and patterns, colors, and estimate of ages. Legible, signed, dated, hand-written, contemporaneous record of the assessment with drawings of injuries detailing measurements. Photographs of injuries. Appropriate investigations (discussed in Subheading 3.1.1.4.). Ask to assess siblings. Initial information gathering from other professionals (e.g., family doctor, health visitor, or teachers from nursery or school) already involved with the family. This does not replace the formal investigation procedures but may be helpful for the examining physician, who must consider the wider picture to formulate an opinion and guide the child protection agencies. Provision of a clear, factual report detailing the findings, summarizing the assessment, and providing a medical opinion for child protection agencies and any criminal proceedings. Maintenance of written records of contacts with families and professionals.

2.3. Pointers to the Diagnosis Suspicion of NAI may arise in the following scenarios (13): • • • • • • • •

Delay in presentation of the injury. Discrepant or absent history. History incompatible with the injury. Pattern of injury more suggestive of abuse. Repetitive injuries. Unusual parental behavior or mood. Child’s demeanor, behavior, or interaction with the parent/caregiver unusual. Disclosure by child or witness.

3. TYPES OF INJURIES (See CHAPTER 4) 3.1. Soft Tissue Injuries 3.1.1. Bruising A bruise is an escape of blood into the skin, subcutaneous tissue, or both, after the rupture of blood vessels by the application of blunt force (14). The initial color of the bruise is the product of the child’s natural skin pigmentation, the color of the pigments in the extravasated blood, and any color added by the inflammatory reaction. The color of the bruise changes as the extracellular hemoglobin breaks down into various pigments (15). Factors affecting the appearance of a bruise include (16): • The severity of the force applied to the area. • The connective tissue support at the site of injury—increased extravasation of blood occurs around lax, loose areas of skin, such as the eye.


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• • • •

Skin color—bruising is more visible in pale skin. Diseases affecting coagulation, blood vessels, or connective tissues. Drugs (e.g., steroids and salicylates). Continued extravasation of blood and tracking between tissue planes, which may delay the appearance of the bruise or lead to a different site of bruising from the site of injury. • Bruising is reduced if pressure is maintained over the area until death has occurred or when death has occurred rapidly. • The use of an implement. The pattern or shape of the bruise can reflect the implement used.

3.1.1.1. Clues to Distinguish NAI From Accidental Bruising For further information, see ref. 17. 1. Patterns • Hand marks. Fingertip bruises consisting of circular or oval bruises from squeezing, poking, gripping, or grabbing injuries. Linear petechial bruises in the shape of a hand caused by capillaries rupturing at the edge of the injury from the high-velocity impact of the hand slap. Pinch marks consisting of paired, crescent-shaped bruises separated by a white line. • Implement marks. High-velocity impact causing a rim of petechiae outlining the pattern of the inflicting instrument, e.g., parallel sided marks from sticks—“tramline bruising” Higher velocity impacts causing bruising underlying the injury in the shape of the object used, (e.g., wedge-shaped bruises from kicks with shoes). Pressure necrosis of the skin from ligatures, causing well-demarcated bands partially or fully encircling limbs or the neck. Coarse speckled bruising from impact injuries through clothing. • Petechial bruises. Pinprick bruises from ruptured capillaries (e.g., suction bruises, squeezing, slapping, strangulation, or suffocation). 2. Sites more commonly associated with NAI: • Facial—soft tissues of the cheek, eye, mouth, ear, mastoid, lower jaw, frenulum, and neck. • Chest wall. • Abdomen. • Inner thighs and genitalia (strongly associated with sexual abuse). • Buttock and outer thighs (commonly associated with punishment injuries). • Multiple sites. 3. More commonly associated with accidental injury: • Bony prominences. • On the front of the body.

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4. Numbers: • The number of accidental bruises increases with increased mobility of a child. • More than 10 bruises in an actively mobile child should raise concern.

3.1.1.2. Dating Bruising For further information, see refs. 14–16. • Bruises cannot be reliably aged. • The development of a yellow color in a bruise is the most significant color change, occurring, at the earliest, 18 hours from the time of injury (16). • Bruises can change color at different rates, and several different colors can be present at the same time in the same bruise. • Bruises of identical age and etiology may not show the same colors. • Possible indicators of more recent injury include: Fresh cuts and abrasions overlying a bruise. Swelling underlying the bruising. Pain or tenderness at the site of injury.

3.1.1.3. Differential Diagnosis of Bruising • • • •

Accidental injury—commonly on bony surfaces, appropriate history. Artifact—dirt, paint, felt tip, or dye from clothing or footwear. Benign tumors—halo nevus, blue nevus, or hemangiomas. Vascular and bleeding disorders—thrombocytopenic purpura, Henoch– Schoenlein purpura, hemophilia, or purpura in association with infection (e.g., meningococcal septicemia). • Disturbances of pigmentation—café-au-lait patches or Mongolian blue spots. • Erythematous lesions—erythema nodosum. • Hereditary collagen disorders—osteogenesis imperfecta or Ehlers–Danlos syndrome.

3.1.1.4. Investigations In the presence of excessive or reported spontaneous bruising, it is reasonable to exclude an underlying bleeding disorder. However, O’Hare and Eden (18) found abnormal tests in 16% of 50 children with suspected NAI and concluded that the two conditions can coexist. Suggested tests include full blood count, platelet count, prothrombin time, thrombin time, partial thromboplastin time, fibrinogen level, and bleeding time (after discussion with a hematologist).

3.1.2. Bite Marks A bite mark is a mark made by teeth alone or in combination with other mouth parts and may be considered a mirror image of the arrangement and characteristics of the dentition. Human bite marks rarely occur accidentally


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and are good indicators of inflicted injury. Children can be bitten in the context of punishment, as part of a physical assault, or in association with sexual abuse. Children can also be bitten by other children. (For further information, see refs. 19 and 20.) Human bite marks have a broad U-shaped arch and broad, shallow, blunt indentation marks on the skin, compared with animal bites, which have a narrower arch size and deeper, smaller skin indentations from sharper teeth. Factors influencing the appearance of a bite mark include the following: • • • •

The status of the skin (ante- or postmortem) and the skin condition. The time period between the bite and the examination. The clarity of the marks and the reaction of the surrounding tissue. The strength of the bite pressure (stronger bite pressures cause deeper skin depressions). • The strength of the sucking pressure (stronger sucking pressures lead to reduced markings by the incisors).

3.1.2.1. Good Practice Tips • When defined bite marks are found, advice should be sought from a forensic odontologist. Impressions and dental casts of suspects can be made that may be able to establish the identity of the perpetrator. • Bite marks can be found on any site of the human anatomy, and when a single bite mark is found, particular care should be taken to search for other bites. Vale et al. (21) found that 40% of their victims had more than one bite and 22% had bite marks in more than one anatomic site. • Documentation of the bite should include the location, contour of the skin surface, size and number of teeth marks, diameter of the mark, and intercanine distance. • An intercanine distance of 3 cm or more indicates that the bite was inflicted by a person with a permanent dentition (an adult or a child older than 8 years) (22). • Plain sterile swabs (moistened, if necessary) can be used to obtain residual saliva from the bite area for forensic purposes. The swabs should be air dried and managed according to standard procedures for the collection of forensic evidence (see Chapter 3). • Good-quality photographs, both black and white and color, should be taken. These should include a scale (rigid L-shaped measuring rule) and, when appropriate, a color standard. Serial daily photographs are useful to record the bite mark’s evolution and optimum definition.

3.1.3. Other Soft Tissue Injuries • Subgaleal hematoma—diffuse, boggy swelling on the scalp can occur following hair pulling (often associated with broken hairs and petechial hemorrhages). • Periorbital injury—from a direct blow (e.g., a punch).

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• Ocular injury Subconjunctival hemorrhage from direct trauma, suffocation, strangulation, chest, or abdominal trauma. Direct trauma can also lead to corneal or scleral laceration or scarring, ruptured globe, vitreous or retinal hemorrhage, acute hyphema, dislocated lens, traumatic cataract, and detached retina. • Perioral injuries—bruising or laceration to the lips from a direct blow to the mouth. • Intraoral injuries. Ulceration to the inner lips or cheeks from a blow to the face causing impaction of the tissues against teeth, torn frenulum from a blow to the upper lip, or penetrating injury from a feeding utensil. Abrasions or lacerations to the palate, vestibule, or floor of the mouth from penetrating injuries (e.g., from a feeding utensil). Petechial injury to the palate from direct trauma to the palate or oral abuse. Tooth injury (e.g., breaks, fractures, or avulsions caused by blunt trauma). • Abrasions—superficial areas of skin loss caused by friction injuries, scratches from fingernails, or sharp-edged objects. • Cuts or incised wounds—a superficial injury that is longer than it is deep, produced by a sharp-edged object. • Lacerations producing rugged wounds from crushing or tearing of the skin resulting from blunt force.

3.2. Thermal Injury Burns and scalds to children can be inflicted, occur accidentally, or follow neglect. The injury can be superficial or partial or full-skin thickness, depending on the temperature and duration of exposure.

3.2.1. Types of Thermal Injury For further information, see ref. 23. • Scalds—immersion, pouring or throwing a hot liquid onto a child. The affected skin is soggy, blanched, and blistered. The shape of the injury is contoured. The depth of the burn is variable. • Contact burns—direct contact of a hot object with the child. Characteristically, the burn is shaped like the hot object, with sharply defined edges and usually of uniform depth. The burn may blister. • Fire burns—flames from fires, matches, or lighters in close or direct contact with the skin, causing charring and skin loss with singeing of hairs. • Cigarette burns—inflicted direct contact leaves a characteristically well-demarcated circular or oval mark with rolled edges and a cratered center, which may blister and tends to scar. Accidental contact with a cigarette tends to leave a more superficial, irregular area of erythema with a tail.


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• Electrical burns—small, deeply penetrating burns with an entry and exit wound with possible necrosis of underlying tissues. • Friction burns—dragging or rubbing injury causing superficial skin loss, with broken blisters, usually on bony prominences. • Chemical burns—the chemical in liquid form is drunk, poured, or splashed onto the skin, or in solid form is rubbed on the skin. The skin may stain, may have the appearance of a scald, and may scar. • Radiant burns—more extensive areas of erythema and blistering on exposed body parts.

3.2.2. Features of Thermal Injuries Suggestive of NAI For further information, see ref. 24. • • • •

Those features discussed in Subheading 2.3. Repeated burns. Sites—backs of hands, buttocks, feet, and legs. Types—clearly demarcated burns shaped like a particular object, immersion burns with a tide mark (clear edge) and no splash marks. • The presence of other NAIs.

3.2.3. Differential Diagnosis of Thermal Injuries • • • • •

Accidental burns—appropriate history and presentation. Infection—staphylococcal or streptococcal (impetigo or scalded skin syndrome). Allergy—urticaria or contact dermatitis. Insect bites. Bullous diseases—porphyria or erythema multiforme.

3.2.4. Good Practice Tips • • • • • •

Identify the type, depth, and extent of the burn. Accurately measure the injury and document with photographs. Manipulate the child’s posture to reflect the position at the time of the injury. Assess the child’s developmental skills. Can the child climb? Turn on a tap? Assess for other signs of abuse. Assessment of the home or place of injury with reenactment of the episode to include the events leading up to the injury, the child’s position at the time of the incident, the length of time the child was exposed to the heat or liquid, the temperature of the appliance or liquid, and measurements of suspected appliances (e.g., the height/depth of the bath, height of the work surface, and position of appliance). • Remember that burns and infection can coexist.

3.3. Skeletal Injury Historically, skeletal injury played a major role in the recognition of child abuse (25,26). In 1946, Caffey (27) described six patients presenting with

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chronic subdural hematoma in which 23 unexplained fractures of the long bones were found. Caffey concluded that the fractures were traumatic in origin and introduced the concept of inflicted injury. Most skeletal injuries of NAI occur in children under the age of 2 years, and some may be occult, particularly in the infant younger than 1 yr who has other signs of physical injury. Merten et al. (28) found fractures in 47% of abused children under the age of 1 year who had skeletal surveys, in which 67% were occult and 60% were multiple. Fractures in infants and children resulting from falls of under 3 ft are relatively uncommon. Research evidence suggests that 1% of children falling less than 3 ft may sustain a simple linear skull fracture (29). Accidental fractures in infants and toddlers do occur, usually as a result of falls, often from a height, but they can occasionally occur in long bones of ambulant children from twisting, running, and falling. There is usually a consistent history and a prompt presentation. Fractures cause pain and distress and are often accompanied by nonuse of the affected body part and local swelling. Any fracture can occur as a result of NAI, but some have a high specificity for abuse, such as: • Metaphyseal—a shaking, pulling, or twisting force applied at or about a joint, resulting in a fracture through the growing part of the bone. • Epiphyseal separation—resulting from torsion of a limb, particularly in children younger than 2 years old. • Rib—resulting from severe squeezing or direct trauma; posterior rib fractures virtually pathognomonic of NAI and commonly associated with shaking injury. • Scapular—resulting from direct impact. • Lateral clavicle—resulting from excessive traction or shaking of an arm. • Humerus or femur—in nonambulant children (under 1 year); transverse fractures from angulation, including a direct blow; spiral fractures from axial twists with or without axial loading; oblique fractures from angulation, axial twisting with axial loading. • Vertebral—resulting from hyperflexion injuries, impact injuries, or direct trauma. • Digital—resulting from forced hyperextension or direct blows. • Skull—resulting from blunt-impact injuries, particularly occipital fractures and fractures that are depressed, wide (or growing), bilateral, complex, crossing suture lines multiply, or associated with intracranial injury (30). • Periosteal injury—resulting from pulling or twisting of a limb separating the periosteum from the surface of the bone, leading to hemorrhage between the periosteum and the bone and subsequent calcification.

Other features of skeletal injury suggestive of abuse include the following: • Absence of an appropriate history. • Multiple fractures. • Fractures of differing ages.


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• Fracture in association with other features of NAI (e.g., bruising at other sites). • Unsuspected fractures (recent or old) found when X-rays taken for other reasons.

Precise dating of fractures cannot be achieved, although ranges of fracture ages are available. Advice from an experienced pediatric radiologist should be sought to assist with dating injuries, to obtain further radiological or other imaging views, and to exclude other causes of skeletal abnormality.

3.3.1. Dating Fractures • • • • • •

Resolution of soft tissues — 2 to 10 days. Early periosteal new bone — 4 to 21 days. Loss of fracture line definition — 10 to 21 days. Soft callus — 10 to 21 days. Hard callus — 14 to 90 days. Remodeling — 3 months to 2 years.

For further information, see ref. 31. Detecting occult injury is particularly important in the younger child and infant and recommended indications for a skeletal survey include the following (17,25,28,32): • • • • • •

Any child younger than 2 years when there is a suspicion of physical abuse. Any child younger than 2 years presenting with a fracture suggestive of abuse. Consider in children aged 2–4 years with severe bruising. Older children with severe injuries. Children dying in unusual or suspicious circumstances. Physical abuse in an infant twin (or multiple birth sets) younger than 1 year— consider skeletal survey of the other infant(s) (33). • Repeat views, particularly of ribs, may be useful 2 weeks after the initial survey, because periosteal reaction may not have formed around acute injuries.

3.3.2. Differential Diagnosis of Skeletal Injury • Accidental injury—appropriate, consistent history, and prompt presentation. • Normal variation—skull suture, physiological periosteal reaction (symmetric and smooth around the long bones of children from 6 weeks to 6 months). • Birth trauma—commonly clavicle or humerus. • Infection—osteomyelitis or congenital syphilis. • Rickets—nutritional, renal, chronic illness, and prematurity. • Cancers—neuroblastoma or leukemia. • Osteogenisis imperfecta—a rare condition, incidence of 1 in 20,000, usually accompanied by a family history of fractures, fractures with minimal trauma, easy bruising, joint laxity, early-onset deafness, blue sclerae, and dentinogenesis. • Copper deficiency—low-birth-weight preterm infants, malnutrition, or malabsorption.

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3.4. Internal Injuries 3.4.1. Intracranial Injury There is a high incidence of mortality and morbidity after inflicted head injury, and it is the most common cause of traumatic death in infancy (34). It has been generally accepted from research evidence that serious or fatal injury from accidental injury, other than that sustained in road traffic accidents or falls from major heights, is rare in children under 2 years and that simple skull fractures in accidental trauma have a low risk of intracranial sequelae (26). The major acute intracranial lesions of NAI are subdural hematoma, cerebral edema with hypoxic ischemic encephalopathy, and, more rarely, brain lacerations, intracerebral and intraventricular hemorrhage, and extradural hematomas (26). The mechanism of brain injury is considered to be a whiplash motion of acceleration and deceleration, coupled with a rotational force, during a shaking episode of an infant, where the head is unsupported. Shaking alone may lead to brain injury, although in many instances there may be other forms of head trauma, including impact injuries (35,36). Impact may be against a hard surface, leading to external injury and an associated skull fracture, or against a soft surface, with no associated external injury. Hypoxia may also lead to brain injury from impairment of ventilation during chest squeezing, suffocation, or strangulation (26). Retinal hemorrhages are strongly suggestive of abuse when accompanied by intracranial injuries and in the absence of a confirmed history of severe accidental injury. Unilateral or bilateral retinal hemorrhages are present in 75– 90% of cases of shaken baby syndrome (36). Retinal hemorrhages can also be found after severe closed chest injury, asphyxia, coagulation disorders, carbon monoxide poisoning, acute hypertension, sepsis, meningitis, and normal birth (usually disappearing by 2 weeks, rarely persisting to 6 weeks). When shaking injuries are suspected, retinal examination is essential and should include direct and indirect ophthalmoscopy preferably by an ophthalmologist. Subhyaloid hemorrhages and local retinal detachment occur earliest, are often peripheral, and are found only by indirect ophthalmology. When intraocular injury is present, subdural hemorrhage is likely, and the presence of retinal detachment and multiple hemorrhages may indicate additional cerebral lacerations or intracerebral hemorrhages (35). Children with acute intracranial injury may present with fits, lethargy, irritability, apnea, unconsciousness and signs of shock, a tense fontanelle, increasing head circumference, and low hemoglobin. Children with chronic subdural hematomas may present with poor feeding, failure to thrive, vom-


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iting, increasing head circumference, and fits. The presentation may suggest sepsis, meningitis, encephalitis, or toxic or metabolic bone disease. The findings of retinal hemorrhages, other signs of abuse, and blood-stained cerebrospinal fluid may assist with the differential diagnosis. Milder forms of shaking may go undetected or present with nonspecific signs that may be minimized by physicians or attributed to a viral illness (36). When brain injury of abuse is suspected, a full blood count, platelet count and coagulation studies, skull X-ray, skeletal survey, and brain computed tomography (CT) are recommended. Magnetic resonance imaging (MRI) should be undertaken when CT is equivocal or normal and there are neurological signs or symptoms (26). The American Academy of Pediatrics considers MRI as complimentary to CT and recommends MRI 2–3 days1 later, if possible (36).

3.4.2. Abdominal Injuries Visceral manifestations of NAI are uncommon and considered to contribute 2–4% of injuries in NAI (37,38). However, visceral injuries carry a high morbidity and mortality (estimated mortality of 40–50%) and are the second most common cause of fatal child abuse because of the shear force of trauma, delay in recognition of injury because of frequent lack of signs and symptoms, and delay in recognition of NAI (38,39). Injuries arise mainly from blunt trauma (punching, kicking, trampling, or stamping) or sudden acceleration/deceleration injuries (swinging or throwing a child into a solid object) and include contusion, laceration, and rupture of solid or hollow viscera. The duodenum, jejunum, pancreas, and liver are common sites of injury in abdominal NAI. Colonic or rectal injuries are associated with sexual abuse (38). Vomiting, abdominal distension, pain, and shock may be presenting features. Other features of NAI and skeletal injury may provide clues to the underlying etiology. Immediate surgery may be necessary. Suggested investigations include full blood count, blood biochemistry, pancreatic and liver enzymes, plain, abdominal, and chest X-ray (free air or free fluid), ultrasound, CT, and gastrointestinal contrast studies, where indicated.

3.5. Fabricated or Induced Illness The fabrication or induction of illness in children by a caregiver is referred to by several different terms, most commonly Munchausen syndrome by proxy, factitious illness by proxy or illness induction syndrome. In the United States, the term pediatric condition falsification is being adopted by the American

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Professional Society on the Abuse of Children. This terminology is also used by some as if it were a psychiatric diagnosis. The American Psychiatric Association’s Diagnostic and Statistical Manual has proposed using the term factitious disorder by proxy for a psychiatric diagnosis applicable to the fabricator (40). Fabricated or induced illness is a persistent fabrication of a child’s illness either simulated or produced by the child’s parent or caretaker. There are three main ways of the caregiver fabricating or inducing illness in a child: • Fabrication of signs and symptoms. This may include fabrication of past medical history. • Fabrication of signs and symptoms and falsification of hospital charts and records and specimens of bodily fluids. This may include also falsification of letters and documents;. • Induction of illness by numerous means.

This form of child abuse is uncommon but severe and carries a high mortality and morbidity. International research findings suggest that up to 10% of children die and approx 50% experience long-term morbidity. There is a high incidence of reabuse and harm to siblings, commonly requiring separation of the child from the abusing parent (41). The perpetrator is more commonly the mother. The range of fabricated illness is wide and can be complicated further by multiple medical investigations. Among the most common presentations are fits, apnea, bleeding, diarrhea, vomiting, fever, and rash (42). Suffocation, poisoning, drug administration, and lying are mechanisms of fabricating illness. Emotional abuse is associated in almost all cases with considerable overlap with other forms of abuse. Diagnosis is difficult and often delayed. Management should follow the usual child protection procedures. Covert video surveillance can play an important role in detection, offering definitive evidence, but this approach must be a carefully coordinated, multiagency and multidisciplinary approach, with the surveillance undertaken by the police (40,43).

4. SUMMARY NAI in children is a common condition and carries with it a significant morbidity and mortality. Physicians must be able to recognize NAI and take appropriate action to protect children. Young children and infants are at particular risk, and there is often an overlap with other forms of abuse. A multidisciplinary approach aimed at early intervention, support for families, improvements in parenting styles, and prevention of mortality and morbidity in the child is essential to safeguard the welfare of children.


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REFERENCES 1. Department of Health. Children Act 1989—Guidance and Regulations. Her Majesty’s Stationery Office, London, UK, 1991. 2. The Child Abuse and Treatment Act Amendments of 1996. PL 104-235. March 10, 1996. 3. Department of Health, Home Office, Department for Education and Employment. Working Together to Safeguard Children. A Guide to Inter-agency Working to Safeguard and Promote the Welfare of Children. The Stationery Office, London, UK, 1999. 4. Gibbons, J., Gallagher, B., Bell, C., Gordon, D. Development After Physical Abuse in Early Childhood: a follow-up study of children on the child protection registers. Her Majesty’s Stationery Office, London, UK, 1995. 5. Newberger, E. H. Child physical abuse. Primary Care. 20:317–327, 1993. 6. Gibbons, J., Conroy, S., Bell, C. Operating the child protection system: a study of child protection practices in English local authorities. Her Majesty’s Stationery Office, London, UK, 1995. 7. American Academy of Pediatrics. Assessment of maltreatment of children with disabilities. Pediatrics. 108:508–512, 2001. 8. National Commission of Inquiry into the Prevention of Child Abuse. Childhood matters. Report of the National Commission of Inquiry into the Prevention of Child Abuse. Her Majesty’s Stationery Office,London, UK, 1996. 9. Child Protection Messages from Research. Studies in Child Protection. Her Majesty’s Stationery Office, London, UK, 1995. 10. Department of Health. Referrals, assessments and children and young people on child protection registers year ending 31 March 2002. Department of Health, UK, 2003. 11. Department of Health and Human Services. Child Maltreatment 2001. Reports from the states to the National Child Abuse and Neglect Data System (NCANDS). Administration for Children and Families. US Department of Health and Human Services, Washington, DC, April 2003. 12. Hobbs, C. J., Wynne, J. M. The sexually abused battered child. Arch. Dis. Child. 65: 423–427, 1990. 13. Speight, N. Nonaccidental injury. In: Meadow, R., ed., ABC of Child Abuse, 3rd Ed. British Medical Journal Publishing Group, London, UK, 1997. 14. Stephenson, T., Balias, Y. Estimation of the age of bruising. Arch. Dis. Child. 74: 53–55, 1996. 15. Stephenson, T. Ageing of bruising in children. J. R. Soc. Med. 90:312–314, 1997. 16. Langlois, N., Gresham, G. The ageing of bruises: a review of the study of the color changes with time. Forensic Sci. Int. 50:227–238, 1991. 17. Hobbs, C. J., Hanks, H., Wynne, J. M. Physical Abuse. In: Child Abuse and Neglect. A Clinician’s Handbook, 2nd Ed. Churchill Livingstone,London, UK, 1999. 18. O’Hare, A., Eden, O. Bleeding disorders and nonaccidental injury. Arch. Dis. Child. 59:860–864, 1984. 19. McDonald, D., McFarland, T. Forensic odontology—report of a case involving bite marks. Glasgow Dent. J. 3:16–19, 1972.

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20. Glass, R., Andrews, E., Jones, K. Bite mark evidence: a case report using accepted and new techniques. J. Forensic Sci. 25:638–645, 1980. 21. Vale, G., Noguchi, T. Anatomical distribution of human bite marks in a series of 67 cases. J. Forensic Sci. 28:61–69, 1983. 22. Scmitt, B. D. The child with non-accidental trauma. In: Helfer, R. E. and Kempe, R. S., eds., The Battered Child, 4th Ed. University of Chicago Press, Chicago, IL, pp. 178–196, 1987. 23. Hobbs, C. Burns and scalds. In: Meadow, R., ed., ABC of Child Abuse, 3rd Ed., British Medical Journal Publishing Group, London, UK, pp. 20–23, 1997. 24. Hobbs, C. When are burns not accidental? Arch. Dis. Child. 61:357–361, 1986. 25. Feldman, K. W. Evaluation of physical abuse. In: Helfer, R. E., Kempe, R. S., and Krugman, R. D., eds., The Battered Child, 5th Ed., University of Chicago Press, Chicago, IL, pp. 175–220, 1997. 26. Carty, H. Non-accidental injury: a review of the radiology. Eur. Radiol. 7:1365– 1376, 1997. 27. Caffey, J. Multiple fractures of the long bones of infants suffering from chronic subdural hematoma. Am J Roentgeneol. 56:163–173, 1946. 28. Merten, D., Radkowski, M., Leonidis, J. The abused child: a radiological reappraisal. Radiology. 146:377–381, 1983. 29. Helfer, R., Slovis, T., Black, M. Injuries resulting when small children fall out of bed. Pediatrics. 60:533–555, 1977. 30. Hobbs, C. J. Skull fracture and the diagnosis of child abuse. Arch. Dis. Child. 59:246–252, 1984. 31. O’Connor, J. F., Cohen, J. Dating factures. In: Kleinman, P. K., ed., Diagnostic Imaging of Child Abuse. Williams & Wilkins, Baltimore, MD, p. 112, 1987. 32. American Academy of Pediatrics. Diagnostic imaging of child abuse. Pediatrics. 105:6:1345–1348, 2000. 33. Hansen, K. K. Twins and child abuse. Arch. Pediatr. Adolesc. Med. 148:1345–1346, 1994. 34. Duhaime, A. C., Christain, C. W., Rorke, L. B., Zimmerman, R. Nonaccidental head injury in infants—“the shaken baby syndrome.” N. Engl. J. Med. 338:1828–1829, 1988. 35. Green, M. A., Lieberman, G., Milroy, C. M., Parsons, M. A. Ocular and cerebral trauma in non-accidental injury in infancy; underlying mechanisms and implications for paediatric practice. Br. J. Ophthalmol. 80:282–287, 1996. 36. American Academy of Pediatrics. Shaken baby syndrome: rotational cranial injuries—technical report (T0039). Pediatrics. 108:206–210, 2001. 37. Merten, D. F., Carpenter, B. L. M. Radiologic imaging of inflicted injury in the child abuse syndrome. Pediatr. Clin. North Am. 37:815–837, 1990. 38. Ng, C. S., Hall, C. M., Shaw, D. G. The range of visceral manifestations of nonaccidental injury. Arch. Dis. Child. 77:167–174, 1997. 39. Cooper, A., Floyd, T., Barlow, B., et al. Major blunt abdominal trauma due to child abuse. J.Trauma. 28:1483–1487, 1988. 40. Department of Health. Safeguarding children in whom illness is fabricated or induced. Department of Health, Washington, DC, 2002.


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41. Davis, P., McClure, R. J., Rolfe, K., et al. Procedures, placement, and risks of further abuse after Munchausen syndrome by proxy, non-accidental poisoning, and nonaccidental suffocation. Arch. Dis. Child. 78:217–221, 1998. 42. Rosenberg, D. A. Web of deceit: a literature review of Munchausen syndrome by proxy. Child Abuse Negl. Int. J. 11:547–563, 1987. 43. Southall, D. P., Plunkett, M. C., Bank, M., et al. Covert video recordings of lifethreatening child abuse: lessons in child protection. Pediatrics. 100:735–760, 1997.

Crowd-Control Agents

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Chapter 6

Crowd-Control Agents Kari Blaho-Owens 1. INTRODUCTION Chemical restraint can be used for a variety of reasons: for control of a violent individual or the agitated patient, to disperse crowds (crowd-control agents), or to limit access to specific areas. This type of control has also been used by criminals to subdue the individual in acts such as rape, robbery, and murder. The possibilities are vast, and detection of their use can be obvious, such as that with traditional tear gas or pepper spray, or may take forensic testing in cases where the person was sedated or otherwise drugged. Forms of chemical restraint were used as early as 423 BC in the Peloponnesian war. Modern chemical crowd-control agents were first employed in the early months of World War I, when the French launched tear gas grenades against the German army. In addition to chlorobenzylidene (tear gas). World War I also saw the introduction of chlorine gas and mustard gas. The Germans first used chlorine gas in the spring of 1915 against the French Army at Ypres. The chlorine gas formed a cloud that was mistaken as a smoke screen behind which the German Army would advance. Instead of evacuating the area, the French army entrenched itself, readying for an attack. Mustard gas was used in 1917 by the German army against the French army. Unlike chlorine, which wafted in a cloud described as a greenish-yellow smoke, mustard gas was nearly odorless, and its effects took much longer to manifest. Although chlorine was an immediate choking agent, rendering severe respiratory distress and death, the full effects of mustard gas take 12–24 hours. Because mustard is an oily substance, it persists in the environment in which it is released, extending its From: Clinical Forensic Medicine: A Physician’s Guide, 2nd Edition Edited by: M. M. Stark © Humana Press Inc., Totowa, NJ 179

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exposure. Any surface exposed to mustard gas is affected. Mucosal membranes, such as the eye, respiratory tract, and skin, develop blisters, slough, and can fully incapacitate the individual for long time periods. It should be noted that the term gas may not be completely correct because many of these agents are not true gases but rather are solid particles that can be dispersed. The effectiveness of the crowd-control agent depends on the delivery of adequate amounts and sufficient contact with susceptible surfaces so that the desired effect is achieved. Therefore, temperature, wind conditions, method of delivery, formulation and potential barriers (such as clothing, masks, and eye protection), and ability to decontaminate interject variability into the response. World War I was the first modern forum that tested chemical weapons to control large numbers of individuals. Since then, agents with wider safety margins have been developed that promote dispersal of large numbers of individuals without significant morbidity and mortality. Modern crowd-control agents, such as chlorobenzylidene ([CS]; also known as tear gas), were first used by the military as training agents, then by law enforcement as alternatives to lethal force, and most recently, some have become available to civilians for personal self-defense. Chemical crowd-control agents can also be used by terrorists to incite fear or panic in crowds, and there is always the potential for accidental dispersal in a public forum or, rarely, the potential for self-abuse. There is considerable debate concerning the use of chemical agents for crowd control. Three agents have been used as less lethal alternatives to firearms and batons. They are capsaicin oleum (OC) (also known as pepper spray [PS]), chloracetothenon ([CN]; also known as mace), and CS. There are five major concerns about the use of these agents by law enforcement: 1. Their possible toxicity to the offender. 2. Potential for exposure to the person administering the agent. 3. The potential for any ancillary exposure to health care providers, and to bystanders (1–4). 4. The expansion of their use to nonviolent offenders, such as peaceful protesters. 5. Concern about the long-term effects from repeated exposure and from occupational exposure (5).

Some of these issues become more complicated because chemical control agents are increasingly popular with civilians as readily available, often legal, self-defense weapons. There have been several incidents in the United States and in other countries that question the appropriateness of use of chemical crowd-control agents (5,6). In one reported incident in the United States, law enforcement officers applied OC liquid via a cotton-tipped applicator directly to the periorbital area


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Table 1 Examples of Chemical Restraint Products Available Brand name

Ingredients

Delivery system

Cap–Stun Alan’s Pepper Spray Pepper Foam Pepper Gard, Triple Action Spray Mark III

5% OC 10% OC 10% OC 10% OC and 10% CS 5% OC and 5% CS

Spray Spray Foam spray Spray Spray

OC, capsaicin oleum; CS, chlorobenzylidene.

of protesters who were sitting and refused to disperse (7). The use of OC against these nonviolent offenders when other methods of control failed generated negative publicity and resulted in legal action against the law enforcement officials. When used appropriately, crowd-control agents have a good safety margin and generally do no permanent harm. In addition to the furious debate over the agents, there has been some concern over the safety of the delivery vehicles, particularly methyl-isobutyl ketone (MIBK). Although chronic exposure to MIBK has been associated with neurological and respiratory effects, there are no data to support the theory that acute exposure to the low concentrations that occur with CS spray poses these same problems (8–10). Despite all of the controversy surrounding chemical control agents, they offer a less hazardous method of restraint than other potentially lethal alternatives, such as firearms.

2. CLINICAL FEATURES AND TREATMENT As mentioned, the three main chemical restraint compounds used by law enforcement for individual or crowd control are OC, CN, and CS. These agents are available in varying concentrations, with several vehicles, in aerosols or foams and in particulate form with dispersal devices. Some of these are listed in Table 1. Essentially a means of less lethal chemical warfare, chemical crowdcontrol products are used as defensive agents to temporarily incapacitate individuals or disperse groups without requiring more forceful means. The clinical effects are short-lived once exposure has ended. These agents share common effects that include lacrimation, ocular irritation and pain, dermal irritation, blepharospasm, conjunctivitis, transient impairment of vision, and mild to moderate respiratory distress (11–13). Some corneal defects after exposure have been noted, but whether this is a direct tissue effect of the agent, the vehicle, or dispersant or a result of rubbing the ocular surface is unknown

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(14). Contact dermatitis and periocular edema can also result. Other more severe effects, such as pulmonary edema, have been documented when concentrations are several hundred-fold above what produces intolerable symptoms or with trauma associated with the explosive device used to deliver the chemical agent (6,15). All of these clinical effects produced by chemical crowd-control agents render the recipient temporarily unable to continue violent action or resist arrest. Because they all share a high safety ratio, are effective at low concentrations, and can be used without direct forceful contact by the law enforcement officer, they are ideal agents for control of either the individual offender or riot control. Because of their relative safety, these agents are generally excluded from international treaty provisions that address chemical weapons. The United States, England, Ireland, France, China, Korea, Israel, and Russia are just some examples of countries that use these compounds as riot control agents. The legal availability to law enforcement and the general public differs between countries; however, most can be easily obtained through international markets or ordered through the Internet. Chemical restraint compounds differ from most agents because some, such as CS, are solid particles with low vapor pressures. They are usually dispersed as fine particles or in a solution. For large crowds, “bombs” have been developed that can be dropped from aerial positions producing wide dispersal of the compound. They are also formulated in grenades or canisters, which can be propelled by either throwing or with a projectile device. The most common method of dispersal is by individual spray cans that deliver a stream, spray, or foam containing the agent. These individual dispersal units were designed to render immediate incapacitation to an offender without the use of more forceful methods, thereby providing an extra means of control in the ladder of force used by law enforcement. Canisters containing a lower concentration of the active ingredient have been marketed to civilians for personal protection. There is no formal training for civilians on securing the devices, laws governing their use, deployment, or decontamination after exposure. This lack of training significantly increases the risk for exposure and adverse events to the users, the intended target, and bystanders.

2.1. Oleum Capsicum OC selectively stimulates nociceptors in exposed mucous membranes, releasing substance P, bradykinin, histamine, and prostaglandins. The physiological effects of these mediators’ results in vasodilation, increased vascular permeability, pain, and altered neurotrophic chemotaxis. Other common symptoms are listed in Table 2.


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Table 2 Common Clinical Findings With Exposure to Crowd-Control Agents Finding Ocular Lacrimation Blepharospasm Pain and/or burning at exposure site Conjunctival injection Conjunctival edema Photophobia Corneal abrasion Impaired vision Upper airway Pain and/or burning Shortness of breath Increased secretion Congestion Coughing Throat irritation Wheezing Irregular respirationa

CS

CN

OC

Dermal Pain Contact dermatitis Blistering

Miscellaneous Nausea/vomiting Bad taste Headache Increased blood pressure

a

a Initial

response believed to be associated with pain. CS, chlorobenzylidene; CN, chloracetothenon; OC, capsaicin oleum.

Capsicum in its pure form is a crystalline material. The oleoresin extract of capsicum contains more than 100 volatile compounds that act similarly to capsicum (16). Because of the variability in the individual components of OC, the relative pungency of the pepper type and geographical origin of the pepper, and variation in quality control, products containing this extract have differences in efficacy (16,17). Commercially available OC products lack

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Fig. 1(A). Examples of individual spray containers containing crowd-control agents.

standardization for capsaicinoid content, which may alter potency, ultimately lead to variability in its efficacy, and jeopardize the safety of the user because of lack of effect (18). Most OC preparations are formulated in a propylene vehicle to enhance adherence to the skin surface. PS is the most common spray marketed to civilians for a less lethal, noncontact, self-defense method. It can be purchased in numerous sprays or foams, in various concentrations, or combined with other crowd-control agents, such as CS (see Fig. 1). In a retrospective study by Watson et al. (8), patients presenting to an emergency department (ED) after PS exposure during a law enforcement action were evaluated. Most patients complained of ocular irritation and irritation and pain at the exposure site. The symptoms were transient, and few required treatment. The most significant adverse effects were corneal abrasions, which were treated with topical anesthetics and topical antibiotics. Five of 94 patients complained of wheezing or shortness of breath. No patient required treatment for wheezing, and two of the five had a history of reactive airway disease. No patient in this study had significant morbidity or mortality,


B

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C

Fig. 1(B,C).

and all were discharged from the ED. There are no data to support that PS exacerbates pulmonary disease or that patients with reactive airway disease are more sensitive to the effects (8,19–21). There have been a few reports of severe reactions to PS. One case report summarized respiratory distress that necessitated extracorporeal membrane oxygenation in a 4-wk-old infant after a 5% PS was accidentally discharged in his face (22). The infant had a rocky clinical course but recovered. Another case report summarized the clinical course of an 11-yr-old child who intentionally sprayed and inhaled PS from an individual canister and developed reversible

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wheezing (23). These case reports are anecdotal in that they report symptoms temporally related to PS exposure and demonstrate that when used improperly these compounds can cause severe symptoms. Thus far, these adverse events have been rare. Of concern were reports of violent prisoners who died after being sprayed with PS and being physically restrained (24). It was assumed that the police used excessive force and that the prisoners died from “positional asphyxia” from the restraints and that PS played a role in their deaths (24). The cause of in-custody deaths can be difficult to determine because many times these deaths have other confounding factors besides restraint and chemical control agents. Risk factors for sudden death, such as mental illness, drug abuse, and seizure disorders, may not be readily visible, and autopsy reports can often be inconclusive or incomplete. There is no evidence that PS causes any type of respiratory effects sufficient to cause death, nor is there evidence to conclude that positional asphyxia caused the deaths of those in question. All of the prisoners who died exhibited characteristics consistent with excited delirium from substance abuse. Most were obese, had hyperthermia, were violent, and had measurable cocaine on postmortem analysis. The lesson learned from these cases is that all violent prisoners, regardless of whether a chemical restraint has been used, should be closely monitored and evaluated by appropriate health care professionals. A small population of acutely intoxicated individuals is at risk of sudden death, independent of their treatment. To refute the association between restraint and OC exposure, Chan et al. performed a randomized, crossover, controlled trial to assess the effect of OC spray inhalation with OC exposure plus restraint in a prone position (25). Results from 35 subjects exposed to OC or placebo showed that inhalation of OC did not result in abnormal spirometry, hypoxemia, or hypoventilation when compared to placebo in either sitting position or in a maximal restraint position. Treatment of exposure to PS is based on severity of symptoms. The first order of treatment should always be decontamination, which includes actions to limit exposure, such as the removal of contaminated clothing. Copious irrigation of affected areas will attenuate the burning sensation (26,27). However, one must use caution not to contaminate other sites with the irrigant (e.g., washing PS from the hair into the eyes or oral pharyngeal mucosa). In a study, topical proparacaine was helpful in alleviating ocular pain associated with OC exposure (approx 50% of those treated experienced an improvement in their symptons) when compared to a topical nonsteroidal antiinflammatory agent (0.03% topical flurbiprofen) or placebo (28). It is important to note that there were no corneal abrasions in any of the 11 subjects in this study and that 21% of the eyes had slit lamp evidence of punctuate epithelial erosions. In this


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Fig. 2. Periocular swelling and facial contact dermatitis from pepper spray exposure during an arrest by law enforcement.

study, as well as an additional exposure trial, the focal epithelial damage healed within 1 d, independent of treatment (29). For those with ocular exposure to OC, a slit lamp examination of the anterior chamber is warranted to rule out corneal abrasion in patients who remain symptomatic for more than 30 min. If present, the abrasion should be treated appropriately with topical local anesthetics, topical antibiotics, cycloplegics, analgesics, and follow-up care. Dermatitis associated with PS has been reported (30,31). Topical corticosteroids, systemic antihistamines, and analgesics have been employed in reducing symptoms. An example of rather severe PS dermatitis and ocular swelling is shown in Fig. 2. This particular patient was sprayed during arrest by police officers and brought to an ED for evaluation. He was treated with irrigation, systemic antihistamines, and steroids, with resolution of his symptoms within 4 d.

2.2. CS Malononitrile and CN CS, or tear gas, is used frequently by the military and law enforcement as a method of controlling both individuals and crowds. The military also uses it

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during exercises to train personnel in the use of protective equipment. CN, known by its common name, Mace®, is the oldest of the crowd-control agents. CS was developed in the 1950s, and it has largely replaced the use of CN. CS and CN are both lacrimating agents. CS is usually mixed with a pyrotechnic compound for dispersal in grenades or canisters as a fine particulate, which forms the characteristic smoke. CN is usually prepared for aerosol dispersal by individual canisters. Both agents are available in individual containers or large bombs, or they can be dispersed through a hand-held aerosolizer. They are formulated with several solvents, such as alcohol, ether, carbon sulfide, and methylchloroform (32), or can be dispersed as solid particles. In the United States, a combination of CS (10%) and PS (10%) is used by some law enforcement for chemical restraint. CS and CN are highly soluble in numerous agents. When contact with mucous membranes is made, the symptoms described in Table 2 occur. Even though there is the perception of shortness of breath, pulmonary function tests performed shortly after exposure to either agent have shown minimal alterations (33). Its mechanism of irritation is not fully understood. The effects of CS are believed to be related to the formation of highly irritating chlorine atoms and hydrochloric acid when it comes in contact with water in mucous membranes (1,34). CS and CN have also been described as alkylating agents that target sulfhydryl groups (33). In addition, there is some controversy surrounding the production of cyanide molecules at the tissue level with exposure to high CS concentrations (35,36). Regardless, the effects of CS and CN are usually manifested without permanent tissue injury. Exposure is most often limited because exposed individuals will voluntarily flee the scene to avoid further exposure. Exposure can be significant if the affected person is forced into a confined space for extended periods of time. A cluster of adverse events associated with CS exposure during a training exercise in the US Marines has been reported. Nine Marines were exposed to CS without the benefit of personal protective equipment. All participated in rigorous physical exercise within 3–4 d after exposure to CS and were subsequently hospitalized with various pulmonary symptoms, including cough, shortness of breath, hemoptysis (n = 5) and hypoxia (n = 4). Four required hospitalization in an intensive care setting, five in a non-monitored setting. All symptoms of respiratory distress abated within 72 hours of onset, and all nine Marines had normal lung function 1 week after CS exposure (37). Most of the dispersal methods for CS and CN achieve concentrations far below what is considered to be lethal (38). However, there is some question regarding concentrations achieved near grenades or other delivery devices or for those who cannot or will not leave the exposure area (6,38). Based on


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animal studies, it is generally believed that a concentration of 25,000–150,000 mg/m3/min or 200 mg/kg body mass represents the LD50 for CS. A grenade can generate a concentration of 2000–5000 mg/m3 at the center, with concentrations becoming significantly less within a few yards from the center of the explosion (38). Regardless of the amount of exposure, all exposures that occur without the use of personal protective equipment where respiratory symptoms do not improve should be evaluated. Treatment of CS exposure is based largely on the severity of clinical findings. The majority of patients will fully recover within minutes of removal from the agent and will not require medical attention (39). The most common lasting complaints are facial and ocular irritation. In contrast to other forms of chemical exposure, irrigating the affected area will only intensify and prolong the effects of CS gas or particles. For patients who require medical evaluation, the first order of treatment should always be removal of contaminated clothing with special attention to eliminating secondary exposure by using protective equipment and not placing a contaminated patient in a confined space. Clothing should be removed outside and placed inside a plastic bag, then bagged again. Blowing dry air directly onto the eye assists in vaporizing the dissolved CS gas (40). Some clinicians have recommended copious ocular irrigation with sterile saline, although this has been believed to cause an initial acute increase in ocular irritation (40,41) in some cases. A careful slit lamp examination of the anterior segment of the eye, including under the lids, should be done for persistent ocular irritation. If particles have become imbedded in the cornea or under the lids, they should be removed. If corneal abrasions are present, a few days of topical broad-spectrum antibiotics, cycloplegics, and appropriate analgesics in addition to close follow-up should be prescribed. Dermal irritation in the form of burning and blistering can be treated with irrigation, preferably with an alkaline solution other than sodium hypochlorite (30). Erythema can be common in skin that has been freshly abraded but resolves 45–60 minutes after exposure. Contact dermatitis can be effectively treated with topical corticosteroids and/or antihistamines, such as diphenhydramine. Typically, dermatitis associated with CS exposure resolves within a few days (30). Home remedies, such as application of cooking oils, are contraindicated and pose an increase risk for irritation and infection (41). Sodium hypochlorite solutions will exacerbate any dermal irritation and should not be used. Plain soap and water is effective, but in most cases, removal of clothing in a well-ventilated area is all that is needed. There are conflicting reports about the long-term effects of CS exposure. With an exposure to high concentrations, usually for prolonged periods in a

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Blaho-Owens Table 3 Options for Treatment for Exposure to Chemical Crowd-Control Agents

Treatment

PS

CS

CN

Removal of contaminated clothing Ocular irrigation Dermal irrigation Alkaline solution irrigation of skin Soap and water decontamination Topical steroids for dermatitis Systemic antihistamines for dermatitis Systemic steroids for dermatitis Topical antibiotics for corneal abrasion Cycloplegics Analgesics for pain

PS, pepper spray; CS, chlorobenzylidene; CN, chloracetothenon.

confined space, pulmonary edema, pneumonitis, heart failure, hepatocellular damage, and death have been reported (12,42). There are no data to support any claims of teratogenicity, or toxicity to the pregnant woman (12,43). These agents do not exacerbate chronic diseases, such as seizure disorders, respiratory disease, or psychiatric illnesses. Contact allergies in those previously exposed have also been reported (44–46). The possibility of secondary exposure to health care and law enforcement providers exists with the use of chemical crowd-control agents. Although published reports are few, effects can be minimized with common sense practices, such as decontamination before the patient is placed in a confined area (e.g., police car, ambulance, or a confined room in the emergency department). The use of protective personal equipment, such as gloves and careful washing of exposed areas, avoids cross-contamination.

3. CONCLUSIONS The most important considerations in using chemical crowd-control agents is that they be used judiciously, correctly, and in place of more forceful means of controlling violent or potentially violent prisoners or crowds. Law enforcement officers should be educated on the common clinical effects and the appropriateness of seeking medical care. Medical care should never be withheld from those who request it or in those prisoners who have lingering effects. Treatment of exposure is summarized in Table 3. To limit injury or potential liability, many police forces regulate the use of chemical crowd-control agents by establishing


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policies to guide their use. One example is the “ladder of force” employed by some police departments. Words are used first, followed by more defensive actions (such as chemical agents), then batons, and finally firearms. Use of these agents is monitored, and formal reports are filed when they are used. These agents afford control of violent offenders with much less risk to life and limb than do firearms, explosives, and battering.

REFERENCES 1. Bhattacharya, S. T., Hayward, A. W. CS gas-implications for the anesthetist. Anaesthesia. 48:896–897, 1993. 2. “Safety” of chemical batons [editorial]. Lancet. 352:159, 1998. 3. Stark, M. M., Knight, M. “Safety” of chemical batons. Lancet. 352:1633, 1998. 4. Blaho, K., Winbery, S. “Safety” of chemical batons. Lancet. 352:1633, 1998. 5. Gray, P. J. CS gas is not a chemical means of restraining a person. Br. Med. J. 314:1353, 1997. 6. Hu, H., Fine, J., Epstein, P., Kelsey, K., Reynolds, P., Walker, B. Tear gas—harassing agent or toxic chemical weapon. JAMA. 262:660–663, 1989. 7. Van Derbeken, J. Pepper spray in the eyes—protesters sue police. San Francisco Chronicle 1A, 1997. 8. Spencer, P. S., Schaumburg, H. H., Raleigh, R. L., Terhaar, C. J. Nervous system degeneration produced by the industrial solvent methyl n-butyl ketone. Arch. Neurol. 32:219–222, 1975. 9. Iregren, A., Tesarz, M., Wigaeus-Hjelm, E. Human experimental MIBK exposure: effects on heart rate, performance, and symptoms. Environ. Res. 63:101–108, 1993. 10. Dick, R. B., Krieg, E. F., Setzer, J., Taylor, B. Neurobehavioral effects from acute exposures to methyl isobutyl ketone and methyl ethyl ketone. Fund. Appl. Toxicol. 19:453–473, 1992. 11. Watson, W. A., Stremel, K. R., Westdorp, E. J. Oleoresin capsicum (Cap-Stun) toxicity from aerosol exposure. Ann. Pharmacother. 30:733–735, 1996. 12. Tominack, R. L., Spyker, D. A. Capsicum and capsaicin—a review: case report of the use of hot peppers in child abuse. Clin. Toxicol. 25:591–601, 1987. 13. Weaver, W., Jett, M. B. Oleoresin Capsicum Training and Use. FBI Academy Firearms Training Unit, Quantico, VA, 1987. 14. Lee, R. J., Yolton, R. L., Yolton, D. P., Schnider, C., Janin, M. L. Personal defense sprays: effects and management of exposure. J. Am. Optomol. Assoc. 67:548– 560, 1996. 15. Himsworth, H. Report of the inquiry into the medical and toxicological aspects of CS (Ortho-Chlorobenzylidene Malonitrile), II: inquiry into toxicological aspects of CS and its use for civil purposes. Her Majesty’s Stationery Office, London, UK, 1971. 16. Cordell, G. A., Araujo, O. E. Capsaicin: identification, nomenclature, and pharmacotherapy. Ann. Pharmacother. 27:330–336, 1993. 17. Haas, J. S., Whipple, R. E., Grant, P. M., Andresen, B. D., Volpe, A. M., Pelkey, G. E. Chemical and elemental comparison of two formulations of oleoresin capsicum. Sci. Justice. 37:15–24, 1997.

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18. Reilly, C. A., Crouch, D. J., Yost, G. S. Quantitative analysis of capsaicinoids in fresh peppers, oleoresin capsicum and pepper spray products. J. Forensic Sci. 46: 502–509, 2001. 19. Fuller, R. W. Pharmacology of inhaled capsaicin in human. Respir. Med. 85:31– 34, 1991. 20. Maxwell, D. L., Fuller, R. W., Dixon, C. M. S. Ventilatory effects of inhaled capsaicin in man. Eur. J. Clin. Pharmacol. 31:715–717, 1987. 21. Collier, J. G., Fuller, R. W. Capsicum inhalation in man and the effects of sodium cromoglycolate. Br. J. Pharmacol. 81:113–117, 1984. 22. Billmire, D. F., Vinocur, C., Ginda, M., et al. Pepper-spray induced respiratory failure treated with extracorporeal membrane oxygenation. Pediatrics. 98:961–963, 1996. 23. Winograd, H. L. Acute croup in an older child: an unusual toxin orgin. Clin. Pediatr. 16:884–887, 1977. 24. Karch, S. B., Stephens, B. G. Drug abusers who die in custody. J. Royal Soc. Med. 92:110–113, 1999. 25. Chan, T. C., Vilke, G. M., Clausen, J., et al. The effect of oleoresin capsicum “pepper” spray inhalation on respiratory function. J. Forensic Sci. 47:299–304, 2002. 26. Burnet, J. Capsicum pepper dermatitis. Cutis. 43:534, 1989. 27. Jones, L. A., Tandberg, D., Troutman, W. G. Household treatment of chili burns of the hands. Clin. Toxicol. 25:483–491, 1987. 28. Zollman, T. M., Bragg, R. M., Harrison, D. A. Clinical effects of oleoresin capsicum (pepper spray) on the human cornea and conjunctiva. Ophthalmology. 107:2186– 2189, 2000. 29. Vesaluoma, M., Muller, L., Gallar, J., et al. Effects of oleoresin capsicum pepper spray on human corneal morphology and sensitivity. Invest Ophthalmol. Vis. Sci. 41:2183–2147, 2000. 30. Holland, P., White, R. G. The cutaneous reactions produced by CS and CN when applied directly to the skin of human subjects. Br. J. Dermatol. 86:150–155, 1972. 31. Penneys, N. S., Israel, R. M., Indgin, S. M. Contact dermatitis due to 1chloroacetophenone and chemical mace. N. Engl. J. Med. 281:413–415, 1969. 32. Schmutz, J. L., Rigon, J. L., Mougeolle, J. M., Weber, M., Beurey, J. Cutaneous accidents caused by self-defense sprays. Ann. Dermatol. Venerol. 114:1211– 1216, 1987. 33. Chemical Casualty Care Office. Medical Management of Chemical Casualties Handbook, 2nd Ed., US Army Medical Research Institute of Chemical Defense, Aberdeen Proving Ground, MD, 1995. 34. Ballantyne, B. Riot control agents: biomedical and health aspects of the use of chemicals in civilian disturbances. Med. Annu. 7–14, 1977. 35. Jones, G. R. N. Verdict on CS. Br. Med. J. 170, 1971. 36. Jones, G. R. N., Israel, M. S. Mechanism of toxicity of injected CS gas. Nature. 228: 1315–1316, 1979. 37. Thomas, R. J., Smith, P. A., Rascona, D. A., Louthan, J. D., Gumpert, B. Acute pulmonary effects from O-chlorobenzylidemalonitrile “tear gas”: a unique exposure outcome unmasked by strenuous exercise after a military training event. Mil. Med. 167:136–139, 2002.


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38. Weigand, D. A. Cutaneous reactions to the riot control agent CS. Mil. Med. 134:437– 440, 1969. 39. Punte, C. L., Owens, E., Gutentag, P. J. Exposures to ortho-chlorobenzylidene malonitrile. Arch. Environ. Health. 67:366–374, 1963. 40. Yih, J. P. CS gas injury to the eye. Br. Med. J. 311:276, 1995. 41. Folb, P. I., Talmud, J. Tear gas—its toxicology and suggestions for management of its acute effects in man. S. Afr. Med. J. 76:295, 1989. 42. Krapf, R., Thalmann, H. Akute Exposition durch CS-Rauchgas und linische Beobachtungen. Schweiz Med Wockenachr. 11:2056–2060, 1981. 43. Upshall, D. G. Effects of o-chlorobenzylidene malononitrile (CS) and the stress of aerosol inhalation upon rat and rabbit embryonic development. Toxicol. Appl. Pharmacol. 24:45–59, 1973. 44. Maucher, O. M., Stengel, R., Schopf, E. Chloroacetophenone allergy. Hautarzt. 37: 397–401, 1986. 45. Fuchs, T., Ippen, H. Contact allergy to CN and CS tear gas. Derm Beruf umwelt. 34: 12–14, 1986. 46. Fuchs, T., in der Wiesche, M. Contact allergies to CN and CS (tear gas) in participants in demonstrations. Z Hautkr. 65:288–292, 1990.

Medical Issues of Restraint

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Medical Issues Relevant to Restraint Nicholas Page 1. INTRODUCTION In 2000–2001, there were 1.25 million people arrested for notifiable offenses in the United Kingdom by 130,000 officers, with each detention involving the potential for several restraint techniques, so it is inevitable that forensic physicians will have involvement with restraint issues (1). Although this topic is common, doctors ignore it at their potential peril. Forensic physicians’ involvement with these issues involves many of the core attributes needed in the practice of high-quality forensic medicine, including the need for good history taking from as many involved parties as is practical to clearly establish events, and a precise examination recorded clearly and contemporaneously. Objectivity must be maintained in the light of differing histories, and there is a need to keep abreast of developing restraint techniques that may bring new clinical problems. However, regardless of how careful police officers may be, there is the potential for serious injury requiring further medical intervention, and the real possibility of being a witness in a legal process, such as police disciplinary procedures. During restraint, any force used must be proportionate to the threat faced, lawful, and necessary. The restraint process is particularly challenging where the potential detainee has a mental health problem or is intoxicated. In addition, the officer, in retrospect and under close scrutiny, must be able to demonstrate that his or her actions were entirely appropriate. It must be recognized From: Clinical Forensic Medicine: A Physician’s Guide, 2nd Edition Edited by: M. M. Stark © Humana Press Inc., Totowa, NJ 195

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that at the time of restraint, officers may not have the luxury of time for a full analysis using prior information or the knowledge that experience, combined with extensive training and retraining, brings. As an independent doctor, excellent clinical management by the forensic physician throughout the case enables the doctor to act as a high-quality witness if needed. The doctor also has a duty to report any instance where excessive restraint appears to have been used, and such concerns should be communicated to the senior police officer on duty immediately. The forensic physician needs to be aware that equipment may be misused; for example, a long-barreled metal torch could be used as a striking weapon in some circumstances, and, indeed such lights were withdrawn in the United States to prevent this from happening. Although the basic principles of restraint are similar throughout the world, there are many variations both throughout countries and within individual states where there are no national police forces. It is also an evolving subject involving research by organizations, such as the Police Scientific Development Branch in the United Kingdom, as well as the practical outcome of restraint techniques when used by officers.

2. RIGID HANDCUFFS Until the early 1990s, handcuffs linked both wrists by a short metal chain, but apart from restricting arm movements, they offered little else in terms of restraint, and if only one wrist were attached to them, the handcuffs could quickly become a flail-like weapon. Rigid handcuffs, such as Kwik Cuffs, were first trialed in 1993 and have since become standard issue in the United Kingdom and the United States. In Australia, there is a mixed use of chainlink and fixed-link handcuffs. Although the ratchet mechanism is the same as with the older cuffs, the fixed joint between the cuffs gives several distinct advantages. Holding the fixed joint allows easy application because simple pressure against the wrist enables the single bar to release over the wrist and engage the ratchet. The ratchet can be locked to prevent further tightening but can also only be released with the key, which requires the detainee to cooperate by keeping still. If the cuffs are not locked, then progressive tightening can occur. Correctly tightened cuffs should just have enough space for an additional finger between the applied cuff and wrist. The hands are usually cuffed behind the back one above the other, because handcuffing to the front may provide opportunities to resist detention. Even with only one wrist in the cuffs, control by the officer can be gained by essentially using the free cuff and rigid link as a lever to apply local painful pressure to the restrained wrist. Techniques allow a detainee to be brought to the ground in a controlled manner or the other wrist to be put within the cuffs.


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A gentle application, such as may be experienced by the forensic physician in a personal trial, will demonstrate that it is clearly an effective way of gaining control of most individuals. This may not be the case in those who are intoxicated, have mental health issues, or are violent. Cuffs should fit firmly but not tightly at the narrowest part of the wrist just distal to the radial and ulna styloid processes.

2.1. Injuries From Handcuffs Injuries from handcuffs either reflect relative movement between the cuff and wrist or are the result of direct pressure from the cuff to the tissues of the wrist. It is important to remember that injuries may be unilateral, especially where there has been resistance to their application. The most common injuries found are erythema, abrasions, and bruising, particularly to the radial and ulna borders of the wrist (2). The erythema is often linear and orientated circumferentially around the wrist following the line of the handcuffs, reflecting direct pressure from the edge of the cuffs. Bruising is commonly seen on the radial and ulna borders, with tender swelling often associated with abrasions or superficial linear lacerations from the edge of the cuff. Abrasions reflect relative movement between the cuff and skin surface. However, it is not possible to determine whether this movement is from the cuff moving over the wrist or the wrist moving within the cuff, because either can produce the same skin abrasions. All of these soft tissue injuries will resolve uneventfully during the course of several days, and only symptomatic treatment with simple analgesia and possibly a cold compress is required. Although rare, it is possible to have wrist fractures from restraint using handcuffs. The styloid processes are the most vulnerable, but scaphoid fractures have been reported (3). Tenderness beyond that expected for minor injuries and especially tenderness in the anatomical snuffbox will need an X-ray assessment as soon as possible. The earliest reports of sensory damage to the nerves of the wrist first appear in the 1920s, with sensory disturbance often restricted to a small patch of hyperesthesia and hyperalgesia on the extensor aspect of the hand between the thumb and index finger metacarpals (4). This area reflects damage to the superficial branch of the radial nerve and subsequent studies confirm that this nerve is most commonly affected by compression between handcuffs and the dorsal radius (5). However, injuries to the median and ulna nerves can also occur, and these may be isolated or in any combination. The superficial branch of the radial nerve may be spared with others being damaged (6). Resultant symptoms are reported as lasting up to 3 years in one case; pain may be severe and prolonged, although the most disturbing symptom to patients is paresthe-

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sia (5). Nerve conduction studies may be used to distinguish between a compressive mononeuropathy and a radiculopathy. The majority of cases with significant nerve damage either involve detainees who are intoxicated or have a clear history of excessive pressure being applied by the officers (5). Intoxication may cause problems through a decreased awareness of local pain, marked uncooperativeness, or poor memory for the restraining episode when a significant struggle occurred. It is possible to have nerve damage with no skin breakage, reflecting undue pressure. Although some of the quoted studies predate the introduction of rigid handcuffs, because of the similar ratchet mechanism, direct pressure problems are still possible. Sensory nerve damage causes loss of pain, touch, and temperature sensation over an area of skin that is smaller than the nerve’s sensory supply because of the considerable overlap between the sensory territories of adjacent peripheral nerves. Lesser degrees of damage lead to tingling, pain, and numbness in the appropriate sensory distribution. In acute compression of the nerve, symptoms appear more or less abruptly, and relief of this acute compression should lead to resolution in the course of some weeks. Associated motor weakness can be demonstrated by the correct clinical test within the hand. It should be noted that compression of the radial nerve at the wrist does not result in weakness.

3. BATONS Until the early 1990s, UK police officers were equipped with a short wooden truncheon approx 40 cm long and weighing just under 300 g. There was little formal training with these, but actual use was not that common, either because they were not terribly effective or the situations faced at that time could be dealt with differently. In 1993, trials of both side-handled and numerous straight batons were introduced, because there was a rise in the number of officers injured on duty and the adequacy of their equipment was called into question. Within the United Kingdom, there are the following three types of batons: 1. The Monadnock PR24 side-handled baton can be either a rigid one-piece baton or extendable from a shorter form for easier transport. Weighing approx 600 g with a shaft of polycarbonate plastic or aluminium, it has a fixed grip at right angles to the shaft toward one end. It is approx 60 cm long. The addition of the handle to the shaft makes it versatile, with more than 30 blocking and striking techniques available to the officer. Correct use in stressful and challenging situations requires extensive and ongoing training. In some restraint situations, a baton strike from the PR24 type is ineffective at producing the desired effect because not enough energy can be imparted from the strike.


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2. The straight friction lock baton (e.g., the Asp) weighs less at 560 g and extends from 13 to 39 cm when racked (extended) with a flick of the wrist. It is carried unobtrusively on the belt and does not impede the general movement of the officer. It is made of hollow gun metal, with a small metal knob at the far end. This gives more weight distally, but it is prone to becoming flattened and rough over time because the baton is closed by striking this end against the ground. This change in shape may increase the chance of injury in a forceful strike. 3. The acrylic patrol baton has a solid or hollow nylon shaft with a ring of rubber separating the shaft and handle. It has fixed lengths of 56, 61, and 66 cm. It is broader than the friction lock type and, therefore, less likely to cause injury because the imparted energy is spread over a larger area. This is even though its weight is slightly less at 500–580 g. The heavier weights of these types of batons are used in public order disturbances.

In the United States, a 26-in hickory (wooden) straight baton is used (similar to group 3 in the previous list). The situation throughout the Australian states is variable, with intrastate differences relating to specific police staff; for example, plain clothes staff may use an Asp-type baton, whereas uniformed officers are equipped with straight or side-handled batons. Batons are used in offensive and defensive strikes, blocks, or jabs. Strikes are made from an officer’s strong (dominant) or weak (nondominant) side, and clearly the potential for injury varies with the baton mass and velocity at impact, the target area, and to how much of the surface area the force is applied. Although no body area is absolutely forbidden to strike, an officer must use a proportionate response to the situation he or she faces knowing the potential to injure. Although target areas are divided into low-, medium-, and high-risk areas, maintaining a distinction between them can be difficult because strikes are made in dynamic situations where an initial target area may change as the potential detainee moves. Target areas with a low injury potential are the areas of the common peroneal, femoral, and tibial nerves on the legs and those of the radial and median nerves on the arms. There is a low probability of permanent injury, with the main effects being seen as short-lived motor nerve dysfunction, as in a “dead leg” and bruising. The medium injury potential areas involve bones and joints, including the knees and ankles, wrist, elbow, hands, upper arms, and clavicle. In these cases fractures, dislocations, and more extensive soft tissue injuries would be expected. Finally, those areas with the highest risk of injury include the head, neck and throat, spine, kidneys, and solar plexus. The most common injury is bruising, and this is often in the pattern of so-called “tramline bruising,” where two parallel lines of bruising are separated by a paler area. This is not unique to a baton injury but reflects an injury caused by any cylindrical hard object. The absence of bruising or other find-

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ings does not mean that a baton was not used because, for example, a degree of cushioning can occur from clothing. If the baton end is used to jab, then circular bruises may be seen. It is possible for a detainee to have signs but minimal symptoms or even be unaware of being struck. However, a move toward the friction lock batons makes this less likely. An impact over a bony surface may produce a laceration. Abrasions are possible from the surface of a damaged baton. Fractures need to be considered where there are the traditional clinical signs of local pain, swelling, and loss of function. X-ray confirmation is needed as soon as possible. Considering the forces that can be applied when necessary, there is the potential for significant injury with bruising and rupture of internal organs, including the heart, liver, spleen, or kidneys or a head injury. The forensic physician should refer suspected cases for hospital review without delay, especially if a confirmatory history for events is unavailable. Particular care is needed in those who are intoxicated because they are difficult to assess.

4. PLASTIC WRIST CONSTRAINTS These are thin plastic ties that self-lock when the end is threaded through the catch at the other end of the strap. Because they cannot be released themselves, snips to cut them are always available at the same time. Although quick and easy to apply, they have no way of being locked in position, so they can tighten in an uncontrolled manner, resulting in direct compression injuries. At least two ties are used on each detainee; one is placed on each wrist and then interlocked with the other. These plastic constraints are used in preplanned operations, where numerous arrests are expected or in specialized operations.

5. UNARMED COMBAT Numerous arm locks and holds, pressure-point control, and knee and elbow strikes may be used. Excessive force, either directly applied by the officer or from a detainee continuing to move, can result in strains to joints, such as the wrist, elbow, and shoulder. Other soft-tissue injuries may occur. Officers in the United Kingdom are not trained in any neck holds because of the high risk of serious injury or death as a result of large blood vessel or airway compression. Fatalities can occur quickly, and if a detainee complains of such holds being used, the neck should be examined carefully. Petechial bruising should be looked for in the face, particularly in and around the eyes, on the cheeks, and behind the ears. It is common for clothing to be held in a struggle to restrain, which may tighten it around the neck. Linear bruising


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may be seen at the site of tightening, as well as petechial bruising on the neck and above on the face.

6. RESTRAINT AT A DISTANCE One of the major problems facing police officers is how to restrain a violent or potentially violent individual, who may be carrying an offensive weapon, using the minimum appropriate force. Clearly, the tactical firearms units are often required in these situations, but there is an increasing trend to look for other “nonlethal” options, which will incapacitate with a lower risk of serious injury. In the United Kingdom, the investigation of firearm incidents under the auspices of the Police Complaints Authority with its attendant recommendations is a major influence when looking at developments in this area (7). Different countries use different restraint equipment, such as water cannon or the firing of different projectiles (e.g., bean bags), and these are subject to consideration for police use at certain times. In 2003, trails of the use of the Taser were commenced in the United Kingdom.

6.1. Baton Rounds In the United Kingdom, baton rounds, previously known as plastic bullets, are solid PVC cylinders measuring 10 × 3.7 cm fired from a shoulder held gun-like device (Cooper G, personal communication, 2003). They were first introduced in Northern Ireland in 1970; 125,000 rounds have been fired, and 17 fatalities have resulted, the last one occurring in 1989. Deaths have usually been associated with direct hits to the head. With time, the delivery systems have improved, and this is reflected in the mortality figures. In June 2001, the L21A1 baton round was introduced to replace the “plastic bullet” in combination with a new baton gun and optical sight (L104 baton gun). This gives much better accuracy, both decreasing the chances of dangerous inaccurate direct impacts and avoiding hitting unintended persons. When used in situations of public order, they are fired at ranges between 20 and 40 m, with the target being the belt buckle area. The aim is to hit the individual directly and not bounce the baton around before this, because this will both cause the projectile to tumble around its axes, making injury more likely, and decrease the accuracy of the shot. Injuries are mainly bruises and abrasions, with fewer lacerations, depending on how and where the body is hit. More serious injuries are possible, with occasional fractures and contusions to internal organs. Although intra-abdominal injury is unusual, impacts to the chest can give rib fractures and pulmonary contusions. As an alternative to using armed response against those who may use firearms or where there is major risk to life, the baton round can be used within a 1-m range.

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A similar system is used in the United States and is based on the AntiRiot Weapon Enfield system, the Sage SL-6, and this is the preferred less lethal option of restraint. This system has a projectile with a tail and is smaller and faster than the baton round. The injury pattern will be similar, but if the projectile becomes unstable in flight so that the surface area striking the target is smaller (because of altered orientation), then the potential for injury is increased.

6.2. Taser First developed in 1970 by John Cover, the “Thomas A. Swift’s Electrical Rifle,” or Taser (8–10), is a small hand-held, battery-powered device allowing the transmission of pulsed high-voltage shocks to a person along fine wires fired from the front of the unit. This shock incapacitates the victim, allowing further restraint. Onset is almost instant, providing the circuit is completed from Taser to target with an accurate weapon discharge. Either compressed nitrogen or a rifle primer acts as a propellant to fire two barbs from the front of the unit to the skin or clothing of the individual requiring restraint. The barbs remain attached to the unit by lengths of wire to a maximum range in some units of 6.4 m. As the range increases, so does the separation between the barbs at impact. This increased separation gives more effect from the 50,000-V shocks as more muscle groups are affected. The barbs are not barbed like a fish hook but only have small projections on them. The generalized involuntary muscular contractions produced by the Taser result in victims falling in a semicontrolled fashion. There is a potential for injuries depending on the exact nature of the fall, but normally, recovery is prompt and uneventful. The barbs penetrate bare skin to a depth of just more than 0.5 cm, giving some punctate wounds and surrounding erythema after electrical discharge. In the target areas of the torso and legs, there are few complications, but a direct hit on the eye could cause a penetrating injury, requiring urgent specialist assessment, and superficial blood vessels elsewhere could be punctured. The barbs themselves are easily withdrawn from the tissues. Taser usage has been associated with fatalities, although the exact cause is not known. Nearly all who died in one study either had taken drugs (phencyclidine, amphetamine, or cocaine), had heart disease (that may only be found postmortem) or had other contributing injuries. Death was delayed for up to 30 min after Taser use, but it should be noted that the Tasers used in this study were using lower energy levels than those in current usage. Just as those suffering from extreme agitation need careful consideration when in custody, individuals who have been agitated or unwell at the time of


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Taser use should have their acid–base balance checked. Taser use could exacerbate an already disturbed acid–base balance by increasing skeletal muscle activity and predispose to the development of ventricular arrhythmias. This would be especially true in the presence of stimulants. Taser is being tested in a few United Kingdom police forces to be used by firearms-trained officers, and it seems likely to be issued nationally. In the United States, it has decreased in use since mace oleoresin capsicum sprays became widely issued because the latter appeared more effective. Tasers are available in parts of Australia to specialist officers and also subject to review of their effectiveness. More research on the medical effects of Taser usage will no doubt be forthcoming over time.

6.3. Bean Bag Rounds Available widely in the United States and some Australian states but not the United Kingdom, bean bag rounds consist of rectangular, square, or circular synthetic cloth bags filled with lead pellets and fired from a shotgun. For example, the “Flexible Baton” fires a bag containing 40 g of number 9 lead shot with a projectile velocity of approx 90 m/s. At impact, projectiles are designed to have separated from the shotgun shell and wadding, opened out to strike the target with its largest surface area before collapsing as they lose energy. The effect is to provide sufficient blunt force from an ideal range of 10–30 m to stop an adult’s progress. In one study (11), the most common injuries were bruising and abrasions, followed by lacerations without having retention of the actual bean bag. However, significant other serious injuries have been documented, including closed fractures, penetrating wounds with retention of the bean bag projectile (and at times parts of the shell and/or wadding), and internal organ damage. Serious penetrating injuries involved the thorax, eye, abdomen, and limbs. Thoracic penetration resulted in one fatality from a massive hemothorax. Blunt injuries included splenic rupture, pneumothorax, compartment syndrome, testicular rupture, subcapsular liver hematoma, and cardiac contusions. It was noted that retention of the bag was not always suspected on an initial clinical examination, being detected on subsequent scans. The distance between gun and target was not formally examined in this study. Clearly, this device has potential for significant trauma to anywhere on the body. Just as with other nonlethal alternatives for restraint, the forensic physician should always consider why such techniques needed to be deployed; use of drugs or alcohol and psychiatric illness are all common concurrent problems in these situations.

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ACKNOWLEDGMENTS The author thanks Dr. G. Cooper, Biomedical Sciences, Defence Science and Technology Laboratory, Porton, England, for information regarding baton rounds, and Sgt. Ross Proctor of the Memphis Police Department and Dr. John Gall and colleagues from Australia for providing information relevant to their jurisdiction.

REFERENCES 1. Conference of the Police Complaints Authority at the Synod. Police Complaints Authority, London, UK, 2002. 2. Rogers, D. J., Stark, M.M., Davie, M. Medical complications associated with the use of rigid handcuffs: a pilot study. J. Clin. Forensic Med. 5:34–37, 1998. 3. Haddad, F. S., Goddard, N.J., Kanvinde, R. N., et al. Complaints after handcuffs should not be dismissed [letter]. Br. Med. J. 318:55, 1999. 4. Stopford, J. S. B. Neuritis produced by a wristlet watch. Lancet. 1:993, 1922. 5. Stone, D.A., Lauren, O. R. Handcuff neuropathies. Neurology. 41:145–147, 1991. 6. Richmond, P., Fligelstone, L., Lewis, E. Injuries cause by handcuffs. Br. Med. J. 297:111–112, 1988. 7. Police Complaints Authority. Review of shootings by police in England and Wales from 1998 to 2001. PCA. The Stationery Office, London, UK, 2003. 8. Kornblum, R. N., Reddy, S. K. Effects of the Taser in fatalities involving police confrontation. J. Forensic Sci. 36: 434–448, 1991. 9. Allen, T. B. Discussion of “Effects of the Taser in fatalities involving police confrontation.” J. Forensic Sci. 37:956–958, 1992. 10. Fish, R. M., Geddes, L. A. Effects of stun guns and tasers. Lancet. 358:687–688, 2001. 11. de Brito, D., Challoner, K.R., Sehgal, A., Mallon, W. The injury pattern of a new law enforcement weapon: the police bean bag. Ann. Emerg. Med. 38: 383–390, 2001.

Care of Detainees

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Care of Detainees Guy Norfolk and Margaret M. Stark 1. INTRODUCTION Doctors may be asked by the police to assess the fitness of adults and juveniles who are arrested in connection with an offense, are detained by immigration, require a place of safety (children and the mentally ill), or are remanded or sentenced (convicted) prisoners. A person in police custody is referred to as a detainee in this chapter. Detainees may have to be interviewed regarding their involvement in an offense and possibly further detained overnight for court; guidance may therefore have to be given to the custodians regarding their care. Although various laws govern the powers of the police in different jurisdictions (1), the basic principles remain the same (2,3). If an individual who is detained in police custody appears to be suffering from a mental or physical illness and needs medical attention or has sustained any injuries whether at arrest or before arrest, such attention should be sought as soon as possible. Increasingly, the police have to deal with individuals who misuse alcohol and drugs or are mentally disordered; if the detainee’s behavior raises concern, medical advice should be sought. Custody staff should also seek medical advice if an individual requests a doctor or requires medication or if the custody staff members suspect that the detainee is suffering from an infectious disease and need advice. In some areas, when a person under arrest is discharged from the hospital and taken to a police station, a doctor is called to review the detainee and assess whether he or she is fit to be detained and fit for interview (4). From: Clinical Forensic Medicine: A Physician’s Guide, 2nd Edition Edited by: M. M. Stark © Humana Press Inc., Totowa, NJ 205

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Norfolk and Stark Table 1 Briefing on Arrival

• Discuss reason called (physical or mental illness/medication/injuries). • Obtain details from the custody record and any risk assessment performed by police personnel or other health care professional, including reason for arrest (may be related to drugs). • Ask the arresting officer for information regarding the circumstances of arrest (concerns regarding behavior/use of force). • Other information may be obtained from relatives/friends/family doctor/hospital/ police computer. • Is request to assess fitness for detention only? • The anticipated length of detention, if known. • Is the detainee to be interviewed? • Are any samples required? • Whether the detainee will be in custody overnight.

Medical assessments of detainees may be performed by either a doctor or a nurse retained to attend the police station (5,6) or by staff in the local hospital accident and emergency department (7). The basic principles on which doctors should base their conduct have already been outlined in Chapter 2. The health and welfare of detainees should be paramount, with any forensic considerations of secondary importance. The role of any physician in this field should be independent, professional, courteous, and nonjudgmental. If the police bring a detainee to the accident and emergency department or if the health professional is contacted by the police to attend the police station, it is important to find out why a medical assessment is required. It is essential that the doctor or nurse be properly briefed by the custody staff or investigating officer (Table 1). Fully informed consent from the detainee should be obtained after explaining the reason for the examination. Detainees should understand that they are under no obligation to give consent and that there is no right to absolute confidentiality. Notwithstanding the latter, custody staff should be given only that information necessary for them to care for detainees while they are in police detention. Such information will include details of any medical concerns, required observations, medication, and dietary requirements. Although those detained in police custody are usually young, there remains the potential for considerable morbidity and mortality among this group. Therefore, it is essential that a full medical assessment be performed and detailed contemporaneous notes made. Obtaining an accurate account of a detainee’s drug

Care of Detainees

207 Table 2 The DRUGS Mnemonic

D octor R ecreational U ser G ynecological S ensitivities

Any medication prescribed by a registered medical or dental practitioner Tobacco, alcohol, illicit drugs, anabolic steroids, etc Over-the-counter purchases/alternative medicine/homeopathy Contraceptive or hormone replacement treatment Including the exact nature of the response

From: ref. 8.

history, including prescribed and illicit drugs, can be difficult. A useful aid to obtaining a better drug history has been described (Table 2) (8).

2. MEDICATION ADMINISTRATION The doctor should ensure that clear and detailed instructions regarding any medication to be administered while the detainee is in police custody (including the dose, times of administration, and special instructions) are given to custodians, with confirmation that these instructions are understood (9). A sufficient quantity of medication should be prescribed to cover the time in detention. The medication should be given to the police in appropriately labeled individual containers or sachets; alternatively, medication may be prescribed and collected from the local pharmacist. It is most important that there is a safe regimen for medication administration to detainees. Records should be kept showing that the prescribed medication is given at the correct time and that any unused medicines are accounted for. Medication should be stored in a locked cupboard. Ideally, police personnel should ensure that when administering medication they are accompanied by another person as a witness, and the detainee should be observed taking the medication to prevent hoarding. If detainees are arrested with medications on their persons, medical advice should be sought regarding whether they should be allowed to self-administer them. It may be prudent for a physical assessment to be performed either in the custody suite or in the local hospital before self-administration of medications. Medication brought with the prisoner or collected from the home address should be checked to ensure that it has the correct name and dosage and that the quantity left is consistent with the date of issue. If there is doubt, police personnel should verify with the pharmacist, family doctor, or hospital. If the medicine is unlabeled, it is preferable to issue a new prescription, especially with liquid preparations, such as methadone.

208

Norfolk and Stark Table 3 Common Medical Problems • • • • • •

Epilepsy Diabetes Sickle cell disease Infectious diseases Self-harm Alcohol

• • • • • •

Asthma Heart disease Injuries Mental health Claustrophobia Drugs

3. CONDITIONS OF DETENTION The doctor should ensure that the conditions of detention are satisfactory regarding the temperature and ventilation of the detention cells, cleanliness of the cell, bedding, personal hygiene, dietary needs, and fluids (10). The detainee should have access to food and fluids as appropriate and should also have a period of rest of 8 hours during each 24 hours.

4. MEDICAL PROBLEMS Several common medical problems are encountered when the doctor is assessing fitness to be detained in police custody. These are now considered in more detail (Table 3). Alcohol and drugs are fully discussed in Chapter 10.

4.1. Epilepsy Many detainees state that they have “fits” and there is a need to differentiate, if possible, between epilepsy and seizures related to withdrawal from alcohol or benzodiazepines; it is also important to consider hypoglycemia. The type of seizure should be ascertained, together with the frequency and date of the most recent one. Medication details should be, obtained including time of the last dose. Treatment may be given if the detainee is in possession of legitimate medication; however, if he or she is intoxicated with alcohol or other central nervous system-depressant drugs, treatment should generally be deferred until the detainee is no longer intoxicated. The custody staff should have basic first aid skills to enable them to deal with medical emergencies, such as what to do when someone has a fit. If a detainee with known epilepsy has a seizure while in custody, a medical assessment is advisable, although there is probably no need for hospitalization. However, if a detainee with known epilepsy has more than one fit or a detainee has a “first-ever” fit while in custody, then transfer to a hospital is recommended.

Care of Detainees

209 Table 4 Signs of Acute Asthma

Parameter

Severe

Life-threatening

Pulse rate Respiratory rate PEFR Blood pressure Speech Chest auscultation Mental State

>110/min >25/min 33–50% Pulsus paradoxus Inability to complete sentences

Bradycardia

Agitation Restlessness

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